375+ # 0384

This would be a meaningful legal argument if reason were the only source of every court judgment.

We must assume that the attorneys representing Bonhams, Swaters and Gardner have arguments to the contrary. It appears that you have been around the track enough times to know that a party saying it does not make it so.

The Ohio Court of Appeals has determined that this argument can only be made to the London High Court. Have you filed anything in London, seeking a ruling on the formation (i.e., the existence) of the HoA? We hear that Wexner has filed something in London. We should expect that Swaters, Gardner, and/or Bonhams have also filed something in London. Have you responded to any such suits?

 

In the beginning Gardner/Ford/Lawson were united and highlighted the injustice against Karl Kleve but what we have now is a dispute between Ford and Gardner with Kristie Lawson caught in the crossfire. Loyality has clearly be displayed but I hope Kristie Lawson is getting objective advise on the implications of what is likely to come. OJ repeats his mantra on the validity of the HOA and on Gardner being out of the picture but as you point out this will ultimately be proved in Court and not on FerrariChat.

Lets not forget, there are three principal parties to the agreement; Belgium, Bonhams and Ohio and of the three parties in the Ohio Contingent, one of them, Gardner, is now lining up against the remaining two. The Telegraph confirms the action and that it will be "strongly contested" by Bonhams and I predict that, as usually happens, the action will be extended to others including Ford/Lawson with a claim for damages arising from the their alleged spiking of the sales process.

The prospects are misery to all outside of the legal profession and as previously stated, I do not understand why Kristie Lawson turned down 10% in favour of a promise and a lot more litigation. It is not like the US, litigation in the UK is very very expensive (leading QC's charge £5,000 per hour) with very few lawyers willing to work on a contingency basis. Home and an OMV title in Ohio may seem a long long way away from London but the car is here and its the car the Court will order against if Ford loses.
Image Unavailable, Please Login

 

The many currently pending actions and appeals and their many moving parts make it impossible to predict the result on the merits. One can predict with absolute certainty that, unless the parties reach a global settlement, the trials and appeals, and subsequent retrials and appeals from the retrials, promise to live on for years (in the plural).

I have always thought the low monetary value that Kristi Lawson has placed on her interests betrays a lack of confidence, on her part, in the merit of her claims. We can agree that it is the frame that was stolen from Karl Kleve -- the bones of this car -- that are the entire basis of the car's value, rather that value is the $18.3 million auction price or the $20-$35 million estimates that some have floated, as the value of an equivalent car with a clear title. Without having researched the law, I would expect that a finding that Mr. Kleve never sold his claims on the car to Jacques Swaters, and that the Belgian customs and title shenanigans had no effect on Mr. Kleve's ownership, would result in an award to her of the value of a clear-title car, less the costs of restoration. Or the car itself could be ordered returned to her, with some kind of lien for the costs of restoration. Either way it's a lot of money. To sell her 100% claim for $75,000, retaining only a contingent 10% payout from a future auction, tells us exactly how much she thinks her claims are worth.

 

I am an eternal optimist about that. Sometimes it takes an appeal court; sometimes a state agency; sometimes it takes a while to get the whole story to the Judge.

Appeal Court C1300604 appealing the 2013.08.19 Order:
---Denied the 2013.10.15 Swaters/Gardner's Motion to Dismiss.
---Reversed the 2013.08.19 Order, reinstated Ford/Lawson claims.

Appeal Court C140270 appealing the 2014.05.13 and 2014.06.09 Orders:
---Denied the 2013.07.15 Gardner's Motion to Dismiss.
---Appeal Pending.

Ohio BMV:
---Denied Gardner's attempt to alter Ohio title, then blocked any conveyance of title, pending outcome of the Ohio case.

Trial Court Case A1306451:
---Denied Gardner's 2013.11.19 Motion to Reform Title
---Denied Gardner's 2014.03.11 Motion to Find Ford in Contempt.
---Granted (part) of Ford's 2014.07.08 Motion to Dissolve Preliminary Injunction.
---Granted Ford's 2013.12.03 Motion to Arbitrate Ford/Gardner portion of dispute.

Florida State Bar:
---Denied Gardner's 2014.06.05 Complaint about Unauthorized Practice of Law.

It takes time, but I see steady progress. I think the writing is on the wall.

Agree. That same tactic of claiming "fraud" umpteen times by multiple aliases (one person) does not work on Ferrari Chat either.

London takes time as I think parties are still being served and only exchanging first sets of documents. I am still waiting to see some documents. As to Ohio Appeal, at oral argument the three judge panel pointed out that the "HOA fraud" or "HOA fraud in the inducement" issue was not an issue in front of them, so they kinda hinted at knowing it exists, and hinted at expecting it to be part of the ongoing proceedings once reinstated when the 2014.05.13 Order is reversed - a reversal that issue seems highly likely to me. Fraud and fraud in the inducement is a way to negate the disputes / venue clause - at least that is my takeaway based on the oral argument and the appeal Order para 13.

---"In this case, the parties do not dispute the validity of the forum-selection clause." -
------Judge Hilderbrant, 2014.05.28 Appellate Opinion, para 13. [F. Chat p58, post #1144]

That statement was only true at that point in time, based on what was before the appeal court at that point in time. It is different now.

I can't wait to talk about the car . . . maybe we ought to start a thread and call it 375+ 0384AM . . . a trophy from the Golden Age of automobile racing.

Joe

(Geeze, Bill, I just saw your post #2178. No such sale on such terms.)

*
Image Unavailable, Please Login
Image Unavailable, Please Login

 

IMHO, actually, in Court, some of the proof that will be used is already on Ferrari Chat. See p61, post #1210. Case A1001370 Swaters v Lawson (on appeal) and Case A1306451 Gardner v Ford/Lawson were and are BOTH pending. Those FACTS should enable a crisp end to the Buyer v Bonhams UK case. Bonhams misrepresented it to be otherwise, despite warnings. My prediction: Buyer gets full refund, Bonhams pays Buyer's attorney fees, Bonhams pays their attorney fees, and Bonhams is out any Zanotti money.



And that letter (p61, post #1210) was written prior to some recent, game-changing revelations.

Joe

*

 

Crisp end ?

There speaks a true litigation lawyer !

Anyone who has even been involved in litigation in the UK (and as an ex CEO of a public company, I bear many scars) will tell you it is always better to reach a settlement then go to court and statistically 95% of the cases settle in the 12 to 18 months it usually takes to go to trial. One of the other problems are costs, as even if you do win, you only ever get back 60-65% from the losing party

You may well be right but before you get too gung-ho I suggest you read the ten pages of small print in the Bonhams terms and conditions that basically say caveat emptor (let the buyer beware).

Giiven that all of Ferrari Chat as well as the wider car community were well aware of your complaint before the auction, a professional motor dealer such as Copley Motors may find difficulty in convincing an English judge they were unaware of the problems before they stuck their hand up to bid

 

That and the fact that her two siblings declined to be part of the action. Even OJ agreed it's an uphill battle.

Anyway, OJ must have inherited some of Karl's DNA:

Thursday, January 20, 2005 The Cincinnati Enquirer
By Kevin Aldridge

 

The US court system is about the same.

Bonhams terms and conditions might come into play. But I doubt it.
For Wexner it will all IMHO come down to how did Bonhams represent the car to him?
Clear title? I doubt they can get away with omitting the fact that the car was reported stolen and is titled to someone else in the US. Ongoing court case, HOA terms.

Probably Wexner and Copley asked these questions. And so bid on the car after hearing the
ALL CLEAR from Bonhams.

The car wont see the US until the Ohio case is settled.

Wexner will win in short order unless he decided to take a huge chance in the US courts.
If so why refuse to take delivery?

And I see no reason Wexner has a claim with the OC. Wexner contracted with Bonhams.
Not the OC or BC.

Bonhams beef if there is one lies with the OC.
Strange they are not in court in London over the title with the OC.
Maybe not so strange if they don't feel good about the execution of the HOA.

To me very strange.

 

any expenses or enhancements associated with stolen property, while harboring said stolen property are at the peril of those harboring stolen property and NOT subject to any reimbursement from the original owner of the stolen property nor can liens be effected against original owner's property by those harboring stolen property when returned... recovered property from a theft is returned to original owner free and clear of any claims... who ever receives this car after final adjudication will receive it free and clear...

 

SO TRUE

One of these cars passed through 4 owners.

This one belonged to Quentin Tarantino.

https://autos.yahoo.com/news/how-quentin-tarantino-s-stolen-chevy-from--pulp-fiction--was-discovered-nearly-two-decades-later-170713276.html


Stolen '57 Chevy recovered 30 years later -- restored

 

Joe can you tell us anything more about legal proceedings and London?

How do you think you would proceed if 0384 landed in then US?

Has Bonhams started anything against the OC in England?

Are you aware of any formal representations of 0384 to potential bidders that includes clear title in the US ?

If you can add anything thanks.

Sean

 

IMHO, the terms and conditions will be superceded by the written representations given by Bonhams to Copley. I have see the doc, and it is why payment was made days after bidding. IMHO, it is damning.

Below is the email I sent to Bonhams' attorney hours before the auction because, at the time, my UK attorney was unavailable.

I would post the email I received from Bonhams' attorney, but it is better revealed in the UK court. IMHO, it is inescapable that Bonhams knew it could not convey title and could not rely on assurances from Gardner, who I think was obligated to tell all that the Ohio BMV has blocked any conveyance of title so Gardner can give NO assurance of ability to convey title. Well, Gardner, as well as Swaters, did give assurances and that is why they are named Defendants in the UK suit.

If you disagree, think of the implication -- if the sale CAN go through regardless of the American title status, then all you need to do is go grab any car in the USA, get it to the UK, and let Bonhams sell it, title status be damned. I think the Bonhams position in this case is bad for commerce.

I think you can see why the sale will not close - ya can't sell someone else's property without their authority. If contested ownership, especially if in court, then you must wait until adjudications are final, and appeals exhausted.

Notice to Bonhams
The August 2, 2011 Order confirmed the Ohio title listing Ford and Lawson as Owners. The HOA expired - notice #1. On September 24, 2013, I cancelled my Power of Attorney - notice #2. On February 18, 2014, Lawson cancelled her Power of Attorney - notice #3. On or about May 1, 2014, Gardner's attorney got the Ohio BMV to block any conveyance of title - notice #4. The May 28, 2014 appellate decision reversed the August 19, 2013 Order that ordered the Ohio title be sent to Bonhams - notice #5. The Wilmots letters - notice #6,7. The Ince letters - notice #8.9. The Droder Miller Letters - notice #10. Etc. At any one of those prior notice points in time, the unauthorized auction should not have been catalogued, nor scheduled, nor continued.

So, I share the shock as Phatboy describes in F Chat p.59, post #1173.

The HOA does not get around, supercede, nor supplant the above. Plus, the HOA expired. Plus, based on new evidence, the HOA was never a contract in the first place.

Please excuse my typo in the email below. The Ince letter to which I refer in my below email is 2014.06.26 and is posted here on F Chat at p.61, post #1210. I expect to see that in newspapers before long.


Joe

*
Image Unavailable, Please Login

 

You may be right Joe but ultimately it is the Courts opinion that counts.

This is a classic claim for misrepresentation of the facts by Bonhams and there are plenty of examples in the past, including the case of Morin v Bonhams and a Ferrari Superamerica. Brooks fought that one all the way to the Court of Appeal and that was only the initial argument over jurisdiction and not even the original claim for misreprented mileage.

IMHO a "Crisp End" is as likely as Wexner spending $18million without asking questions

 

Agree, trial level is ok, and appellate level is best, if you can get it.

I think you are wrong. A "mistake" or "misrepresentation" as to ownership is not something the catalogue fine print can overcome. There will be no sale if the owners do not consent, or if the ownership is not resolved.

Resolved ownership is so critical that Bonhams willingly and hastily agreed to pay out $3,000,000 to resolve what is known (by all in the Ferrari community, including Ms. Swaters) to be a meritless ownership claim by a Sr. Zanotti Cavazzoni (of Uruguay, allegedly). I have my suspicions about that.

Please provide the basis for your statment that the buyer spent $18,000,000 without asking questions.

Please provide the basis for the implicit expectation that a buyer MUST ask questions when dealing with Bonhams. What do you know about Bonhams that is basis for said buyer to be obligated to ask questions?

Are you suggesting that the buyer knew the ownership was unresolved, and paid $18,000,000 anyway, knowing he was not getting resolved ownership?

An odometer statement MAY be a minor misrepresentation of fact, but CAN be a major misrepresentation of fact if it is an unusual low mileage type statement that bears on price. Liability for such a misrepresentation flows to who made it and whether they knew it, or had a duty to know it, when making the misrepresentation. Seller may be liable while auction house is free and clear. Depends on actual facts in each instance, once you are in the correct jurisdiction of course, applying the correct law(s).

A statement as to ownership is a horse of a different color - the UK has a statute on just that issue - a seller or seller's agent warrants that he has authority to sell, and the catalogue or a contract's fine print can't overcome it. Please see the Ince letter on Ferrari Chat p.61, post #1210 as it refers to that statute and issue.

IMHO, Bonhams' ONLY chance to not be found reckless or fraudulent is for Bonhams to claim they mistakenly believed the ownership to be settled (though such a statement seems to be contradicted by the documents).

IMHO the outcome is the same regardless if a "mistake" or not - the buyer gets ALL his money back, plus Bonhams pays buyer's attorney fees, plus Bonhams is out of pocket for "hush" money funneled to Sr. Jose Zanotti Cavazzoni.

I have seen the documents sent to Bonhams in advance of the auction and I do not see how Bonhams can claim litigation was resolved when it literally is ongoing in Ohio at trial and appellate levels.

Joe

*

 

Make no mistake, the reach to London is not as far as you imagine.

ONE phone call to Tonyh, AntM, or even 512TeaAre would have the jangling keys picked up and the car will be returned to Ohio in a heart beat!!

 

Maybe OJ will YOU take it out to the airport!!

Be careful with it, no scratches!!

 

We have to disagree on this one Joe, as in cases like this it is certain to be a claim for misrepresentation. Copley will be claiming that they relied on Bonham's statement on title and Bonhams will be claiming they believe the statements to be true

I have no basis of belief other than common sense. Wexner (a Ferrari collector) engaged Copley Motors (an expert) to buy the car on his behalf and we can be 99% certain that Wexner was expecting a little more then Copley simply turning up, reading the catalogue and sticking their hand up. IMHO, the two principal issues on 0384 were the restoration and the title and if Copley did not ask questions on these then they did not do their job

I am not suggesting the buyer purchased the car believing there was a problem. Conversely, I do not believe that Bonhams had anything to gain proceeding with the sale if they thought there was a problem as the outcome was obvious. You have your view on the HOA and Ohio title and they clearly have their own

IMHO this case will run and run in London and counterclaims are inevitable

 

Hypothetically speaking, what if there was a business dedicated to bringing together buyers and sellers of used objects, e.g., paintings, sculptures, books, furniture, jewelry, or motor vehicles. What if this business made it crystal clear to both the buyer side and the seller side that it was only a conduit through which the principals would form a contract of sale, making it clear to the buyers that the conduit was depending entirely on the representations of the sellers for the accuracy of the descriptions of the things that the principals freely chose to buy and sell. What if its ground rules stated unequivocally that even the representations that were included in these descriptions were not binding on the seller unless that representation was expressly earmarked as having that quality. What if tens of thousands of items passed through the conduit provided by this business, such that it would not be feasible for it to make its own investigations regarding the accuracy of the sellers' representations. What if no one held a gun to the head of the buyers who chose to participate in this scheme, to compel their participation. What if the industry that this business had created could not exist under any other set of rules and understandings. Would this business then be the subject to liability in damages to a buyer for any representations about any item which turned out not to be true?

Second hypothetical, for those who answer yes: what if the falsity of the representation from which the buyer is seeking relief was well known, including to the buyer himself. Would the conduit business still be liable to the buyer?

Isn't it the case that anything that one can buy at a high end auction, is regularly available in one-on-one transactions? This includes items that aren't actually being offered for sale, based on the maxim that nearly everything is for sale if the price is right, to a buyer who is willing to pay multiples of the fair market value in order to persuade a reluctant owner to sell. If so, then it follows that buyers at auction choose that marketplace because it costs less to acquire the things they want than to pursue them in private sales. Should these buyers then be heard to complain when they make this choice and things turn out not to their liking?

 

Great explanation Bill.

The Telegraph claims the buyer wants his money back which all points to a claim for recision of contract contract based on misrepresention by Bonhams. The interesting question is what happens next ?

I don't see Bonhams rolling over but I can see them extending the action to those who consigned the car for sale. It is pretty clear that Ford/Lawson did not consent which leaves the other parties to the HOA as joint defendants. As previously posted this is likely to run and run and IMHO (learned from OJ) the defendants will in turn place the blame at Ford/Lawsons door.

K

 

What if the falsity of the representation was known to Bonhams? Or even if there was just doubt over the representation?

 

I hope this is OK to copy here from a few days ago on TNF.

"And - for balance and to make this quite clear - Bonhams is most rigorously defending the matter."



DCN

 

They would most likely lose if they knew and if in doubt would be on dangerous ground.

OJ believes that the sale could not proceed because the HOA had expired, the POA had been withdrawn and there was ongoing litigation in Ohio. The other parties to the HOA clearly see this differently and believed they could proceed.

I would find it surprising if the buyer did not review the HOA before the sale and form their own conclusion or try to claim they were unaware of the terms. Bill has helpfully posted his thoughts and we can all do the same.

 

It is also interesting to read OJ's earlier posts, specifically this one in September 2013 just after the the missed auction date envisaged in the HOA.

Somewhat of a contradiction to the arguments put forward after he fell out with his partner

 

When you buy goods at auction, the buyer enters in to a contract with the owner of the goods, not the auctioneer. This means that if there is a problem with the goods, usually you have to take action against the owner of the goods, not the auction house.

However, the auction house does have some responsibilities, for example, it must not make a false statement about the goods.

I imagine that will be the cornerstone of the case, the communications between OJ & Bonhams will make it "difficult" for Bonhams to deny they did not know that the legal action regards ownership had not been settled prior to the auction

My view is that wether or not Copley knew that legal action was still ongoing is irrelevant, the onus is first and foremost on the auction house not to make a knowingly false statement regarding the goods.

In defending such a case the auction house defense team will probaly attempt to shift blame to the vendors claiming "we were misled " and in response the buyers legal team will forensically examine the relationship between the vendor and the auction house in an effort to prove otherwise.

I hope it goes to trial. It will be fascinating to see a spotlight shine on what really happens behind the scenses in the high end auction business.

M

 

I agree they have a duty of care to get the facts right but it is a mistake to assume that the legal action not was settled simply because OJ said so. Swaters/Gardner/Bonhams were aware of what was being said but chose to ignore it.

If it does go to trial, I will enjoy sitting in the public gallery putting faces to the names in this long running saga.