375+ # 0384

If your question there was directed specifically at me... I have a stronger than mild interest in the history of classic Ferraris and have now invested ~5 years reading everything presented here and elsewhere on the topic of 375+ 0384. Along the way I have formed my own opinions of the series of events and cast of characters. Last time I checked this was a discussion forum and fair play to everyone to participate regardless of direct involvement or not.

>8^)
ER

 

New article on the auction world touching on this subject was posted today and includes quotes from the recent London hearing:

John Helmer: Auction House Bonhams, Sued Over Frauds and Forgeries, Casts Pall Over Russian Art Market | naked capitalism

>8^)
ER

 

What does The Board think of my Comment to the article in Peoloton25's link? Any corrections needed?

"The 1954 Ferrari 375 Plus was bought by a resident of Cincinnati Ohio in 1958. For no good reason he dismantled it, sold off the engine, and dispersed other components. In 1989, thieves stole the bulk of what remained — consisting of the front 2/3rds of the tube frame, the front fenders, and the hood — from its resting place in a wooded lot. These parts were shipped to Belgium, where Belgian law will issue a title to a stolen vehicle under qualifying circumstances. The new owner converted these parts to the car as it stands today, including reuniting the frame and fenders with the original engine. The heir of the Ohio owner filed a countersuit in Ohio, seeking ownership of the restored car. She is joined in this claim by a pair of treasure hunters. On the other side is the heir of the Belgian owner. In March 2013 these four reached a settlement agreement, which provided that Bonhams would sell the car at its annual Goodwood auction in September 2013, with the Belgian party to receive 50% and the Americans to receive 50%. The agreement provided that all future disputes would be resolved by the London High Court. The September 2013 auction did not happen. The Belgian and one of the Americans agreed to go forward with a Bonhams sale at its June 2014 Goodwood auction. The other two Americans went back and forth on that proposal, and currently contend that Bonhams’ agency expired in September 2013. The Victoria’s Secret billionaire, by his agent, a New York collector car dealer, won the June 2014 auction, paid the money and took possession. By coincidence, Mr. V.S. is also a resident of Cincinnati. The dispute over Bonhams’ agency, post-September 2013, has put a cloud on an Ohio certificate of title to the car. Mr. V.S. is suing for Bonhams to unwind the deal, and the four litigants are suing in London for a determination of Bonhams’ agency. Bonhams filed an action simply asking the London Court what to do with the money. The suggestion in the article above that Bonhams should carry on its books a liability in the amount of this money is silly. It’s not Bonhams’ money, it’s being held in trust. Bonhams’ exposure is the return of its commission and attorney fees. It also has a thin exposure to punitive damages, if it is found to have engaged in outrageous fraud."

 

I realize I left out the Zanotti claim. I'm not clear on the factual grounds of Zanotti's claims, how much he was paid by Bonhams (if anything), whether Swaters and Gardner agreed to the payment, and whether Zanotti is currently on offense -- seeking the full payment of the settlement he reached with Bonhams -- or if Bonhams is suing Zanotti for fraud. Is there anyone who can fill in the blanks? With Joe Ford sitting duct taped to a chair in his London attorneys' conference room, there's no one with the time or energy to figure it out. Odd, isn't it, the extreme degradation of the quality of this thread, *after* Joe Ford went radio silence? Unedifiying tittle tattle on steroids.

 

One small note, there was some argument at the beginning of the thread whether in 1989/1990 the car was released because of A-Pressure from Mr. Swaters, B-Claims the car was actually #0394AM or C-The Belgian law(s) allowing safe purchase after three changes of ownership. I am not 100% sure that this question was ever answered to satisfaction.....

 

(1) His agent is a Massachusetts collector car dealer.

(2) I don't thing he's actually ever taken possession.

(3) Mr. V.S. resides in the greater Columbus, Ohio area.

 

Thanks for the corrections. Regarding Wexner's possession of the car, no one has ever posted anything that this is the case, like a court document or personal knowledge. But there is no other possibility. The contract at the back of Bonhams' catalog requires winning bidders to collect and transport their property at their own expense. And what else could an auctioneer of cars do, but to require all the new owners to take their cars away to their new homes? I don't recall how long it was before Wexner got this terminal case of buyer's remorse, but it was not before he and Copley would have been required to trailer #0384 from the Goodwood premises and off to a suitable storage somewhere.

Of course this is another example of Joe Ford's deceptively selective disclosures of information. Although the subject has come up before, Joe Ford has never weighed in regarding the current whereabouts of the car, because it serves his cause to have people thinking that Wexner refused to take possession, and/or that Wexner does not have possession of the car.

 

Bill,
The car sits in storage in a werehouse in Southampton.
RE: Kim's post 3108.
C

 

But under whose control?

We can rule out Joe.

>8^)
ER

 

Hello All,

I am still here. I may chime in occaisionally to correct blatantly ignorant statements such as above.

If I knew where the car was, and under whose control, I woud not have had to have my attorneys seek that information out.

Interesting.

Joe

*

 

No need to shake off the rust. Joe Ford's junk balling style is in midseason form. I can spot at least three deceptions in these few words, without having to think too hard.

 

Zanotti got one half of his $2M claim, before the sale as I recall?
The balance to paid after the vehicle was liquidated.

 

Correct.

Payment is due in two days and Wexner claimed he was completely ignorant of problem until he read Phatboy's (aka Ray Lawson aka Ocean Joe aka Gardner) one and only post, eight days after the auction.

http://www.ferrarichat.com/forum/143222870-post1173.html

 

Welcome back Joe.

Were you happy with your barristers performance last week ?

 

Judging from some of the other posts, it is a shame there is not a rule banning hypocrisy.

 

Having watched them, I will take that as a no

Always good to be optimistic.

Mr Justice Flaux directed all parties to a mediation hearing in May before the next case management hearing on the 5th June, have you got a date and are you going ?

The Judge was less optimistic on the mediation being successful but given the complexity and cost of the impending litigation who can blame him for trying.

From the London hearing, Justice Flaux indicated two key stages before all of the claims and cross claims are heard

Firstly, inspect the car and determine if the car is indeed 0384 or 0394 or contains other components. The significance of this is to assist in the settlement of the claims against the car by Zanotti and others.

Secondly, determine the ownership and the validity of the 1999 settlement agreement. The Judge started from his observation that the settlement agreement was a valid document, drafted by lawyers with notarised signatures and that Swaters owned the car. Effectively this will be your stayed ownership case in Ohio being heard in London but the burden of proof is now on you to prove that Kleve and his authorised agent did not perform. What did happened to the money Swaters paid.

Settling the all important ownership dispute does not invalidate the HoA or settle all of the claims, but it does throw up a number of interesting scenarios.

1. Swaters is the owner. Simplifies the dispute greatly as Swaters can convey title to Bonhams and the sale by auction to Wexner can be completed. The Ohio Contingent will then have to change their argument and claim that the HoA was indeed valid if they are going to get any money.

2. Kleve Lawson is the owner. Complicates the dispute but Wexner’s claim for rescission of the auction contract against Bonhams is significantly strengthened. The HoA and 50/50 split is still effective and the Ohio Contingent will have to prove that it has expired or was a fraud to get 100%

What ever the outcome from the key stages there will still be a mountain of litigation to follow. Justice Flaux has asked for a “consolidated list of the issues” before the next hearing so he can work out how best to hear this case in April next year but one thing he was certain about, is that it is not going back to Ohio and he will not entertain the “numerous and irrelevant pleadings” that have dogged the case so far

K

 

from Kim's last post...

re: HOA... the implied tone is that the HOA is valid... I don't think anyone ever disputed that the HOA wasn't a good document... it just expired, became moot / unenforceable, requiring the court to look to the decisions in the Ohio court

the question becomes what about the "drop dead dates" / "sunset set" dates that declare the document to expire / void by date certain...

how can a court ignore these expiration dates in this contract, they set time limits by which to perform... when in countless other contracts expiration dates are enforceable, there is no mention ( by the court ) of dates or requirement to perform... there was no indication of contracted performance by anyone under the set time limit... the purpose of contracted date requires contracted performance... the court cannot ignore the dates in this situation and uphold dates in other situations...

 

All fair points and you could well be correct but the fact is, that each of the parties are interpreting the HoA in a different way and that is what the Judge will decide. However, in reaching his decision on the HoA you need to appreciate that there are a couple of key differences between UK (common law)and US (civil law) contract law that will be applied.

First and foremost, unlike the US, English law does not have a general implied duty of good faith in the performance and enforcement of the HoA contract and secondly, the test in relation to an ambiguous clause like the expiry date is “what would the clause reasonably mean to a person with all of the background facts available AT THE DATE when they signed it”. Pre contractual discussions, earlier drafts and previous discussions are ignored

In summary, I believe Joe’s game changing fraud argument will be very difficult to argue particularly when he ended up getting more for the car then he originally estimated. I also think that, AT THE DATE the HoA was signed, the evidence suggests that the parties were more concerned with getting the car sold at the best price, as soon as possible rather than any deadline.

K

 

as is pointed out US vs English law differs causing difficulty with interpretation... intent cannot be assumed, it must be explicit and finite... in the matter of date, one could argue, why bother with dates... failing that everything has the potential to be open ended... leaving too much discretion to the court

 

Holy crap. Please let us know what a signed contract means in the UK.

 

it appears that English law allows for a lot of judicial bias... not a good thing... judicial bias should be limited and kept in check...