375+ # 0384

[jjmcd]

Art,

The law that you're citing (requiring a BFP to return possession of stolen goods) is the US rule. As I noted in my previous post, the rule in some non-US jurisdictions is different. Ocean Joe (apparently the Kleve daughter's attorney) is obviously going to argue that the US rule applies and Swaters' attorneys are obviously going to argue that Swaters was a BFP and the non-US rule applies. Which rule actually applies will be determined using applicable international law principles.

The whole argument really goes to measurement of damages. There are a number of different ways to measure them.

According to Ocean Joe, the Kleve daughter is entitled to retake possession of the car, since the car is "stolen goods", which effectively means that she gets the full value of the currently-restored car. IMHO, there is an unjust enrichment aspect to Kleve benefiting from all of the restoration work undertaken by Swaters to turn the hulk back into a concours-level fully-operational race car (especially if she gets the car's original engine, which was separately purchased by Swaters and wasn't with the hulk when it was stolen). Maybe that is counteracted by bad faith on Swaters' part if he knew that it was stolen. I suspect that the truth is somewhere in between, given Kleve's acknowledged "eccentricities" and the various shady "brokers" involved back in the 1980s and early 1990s.

Another measure of damages would be that Kleve is entitled to payment by Swaters for the value of the hulk. That "value" could be the hulk's current value (i.e., 2010) (which, as you noted, mostly consists of its historical value as #0384). Alternatively, the "value" could be the value of the hulk as of the time it was stolen back in the 1980s. Given the huge run-up in the value of 1950s racing Ferraris, I would expect that the current value is much larger than the 1980s value.

Another line of argument that Swaters' counsel could pursue (or maybe already is pursuing) is that the $650k settlement agreement constituted a waiver of the claim to title of the car, even if less than all of the agreed-upon settlement payment was actually paid by Swaters. If that is the case, Kleve would only be entitled to money damages from Swaters -- i.e., the amount not actually paid under the settlement agreement, NOT return of the car.

In any event, it's all positioning for the inevitable settlement negotiation process, as Kleve's daughter and her attorney Ocean Joe (who is likely working on contingency for 30-40% of the recovery, given the Kleve daughter's financial situation) don't really want the car (they want money) and Swaters wants the car. If Kleve/Ocean Joe can get past summary judgment, the amount that Swaters will be willing to pay to settle the case will be much larger. It would be interesting to see how it all turns out although, if the case is settled, there will likely be a confidentiality requirement, so we'll never learn the details.

Regards,

John

[naparsei]

According to FML, there was a 0394, and it was also a 375 Plus. I don't know what their source is, and have no way to verify it. There is some explanation as well as to how the 0384 and 0394 were both possibilities.

Like the rest of the audience, I curiously await an outcome. Since I doubt this gets resolved soon, it's kind of like for the next book in a series...

[chroush]

naparsei,

As with any history form, it is always being revised. Yes, the Ferrari Market Letter/Gerald Roush once thought that 0394 AM was the car driven by Jim Kimberly and others.

But as more facts come to light, that history changes. That is why my father was always hesitant to republish old articles from the FML about certain models or specific Ferraris because what he knew in the past decade was vastly different than what he knew when he wrote about these cars in the 1970s and 1980s.

I will make no statement to the legality of what is being argued by the Kleve heir or the Swaters family. But I did attempt to recreate the history of the car as best as I could from the documents filed in the case in the latest FML.

Chris Roush

[naparsei]

Chris,
Thanks for the clarification. I, like everyone else in the community, was sorry to hear about your dad. He was a massive resource. If the last couple of issues are any indication, it seems likely your goal is to honor his legacy while improving an already great product. I enjoyed the article - it added another perspective to what is going on here @ FCHAT.
Alex

[246tasman]

I have been reading this thread with interest as it has developed, and what had been posted until now did not add up for me. I couldn't see how both parties were making such divergent claims.

I've now read Chris Roush's clear & succint article in FML which adds a lot of detail missing from this thread and makes everything much clearer to me.

Would Chris be willing to have the article posted in this thread?

Will

[Tad Cody]

Originally Posted by jjmcd

Art,

The law that you're citing (requiring a BFP to return possession of stolen goods) is the US rule. As I noted in my previous post, the rule in some non-US jurisdictions is different. Ocean Joe (apparently the Kleve daughter's attorney) is obviously going to argue that the US rule applies and Swaters' attorneys are obviously going to argue that Swaters was a BFP and the non-US rule applies. Which rule actually applies will be determined using applicable international law principles.

The whole argument really goes to measurement of damages. There are a number of different ways to measure them.

According to Ocean Joe, the Kleve daughter is entitled to retake possession of the car, since the car is "stolen goods", which effectively means that she gets the full value of the currently-restored car. IMHO, there is an unjust enrichment aspect to Kleve benefiting from all of the restoration work undertaken by Swaters to turn the hulk back into a concours-level fully-operational race car (especially if she gets the car's original engine, which was separately purchased by Swaters and wasn't with the hulk when it was stolen). Maybe that is counteracted by bad faith on Swaters' part if he knew that it was stolen. I suspect that the truth is somewhere in between, given Kleve's acknowledged "eccentricities" and the various shady "brokers" involved back in the 1980s and early 1990s.

Another measure of damages would be that Kleve is entitled to payment by Swaters for the value of the hulk. That "value" could be the hulk's current value (i.e., 2010) (which, as you noted, mostly consists of its historical value as #0384). Alternatively, the "value" could be the value of the hulk as of the time it was stolen back in the 1980s. Given the huge run-up in the value of 1950s racing Ferraris, I would expect that the current value is much larger than the 1980s value.

Another line of argument that Swaters' counsel could pursue (or maybe already is pursuing) is that the $650k settlement agreement constituted a waiver of the claim to title of the car, even if less than all of the agreed-upon settlement payment was actually paid by Swaters. If that is the case, Kleve would only be entitled to money damages from Swaters -- i.e., the amount not actually paid under the settlement agreement, NOT return of the car.

In any event, it's all positioning for the inevitable settlement negotiation process, as Kleve's daughter and her attorney Ocean Joe (who is likely working on contingency for 30-40% of the recovery, given the Kleve daughter's financial situation) don't really want the car (they want money) and Swaters wants the car. If Kleve/Ocean Joe can get past summary judgment, the amount that Swaters will be willing to pay to settle the case will be much larger. It would be interesting to see how it all turns out although, if the case is settled, there will likely be a confidentiality requirement, so we'll never learn the details.

Regards,

John

Really? Maybe I read it wrong, but I got a much more inherently protective vibe from his posts, i.e. that of boyfriend/lover. I'd be willing to wager... oh, hell... Joe? You put your name out there... please elucidate the connection.

Either way, I'm on the edge of my seat waiting for the crescendo!

-Tad

[EnzoNZ]

The FML article is a very interesting read !

[chroush]

Will,

Unlike the daily newspapers in this country, the Ferrari Market Letter does not give away its content for free on the Internet. Sorry.

I'm a big believer in the concept that information is valuable, and to post it here would dramatically lessen that value.

Chris Roush

[thecheddar]

Originally Posted by EnzoNZ

The FML article is a very interesting read !

Would anyone be able to summarize the key facts or new information from this piece? If possible, thanks in advance!

[BigTex]

Give FML some business, it's available in on-line format to subscribers, I believe....you don't have to wait for the mail!!

Thanks for joining in, Chris.....

[thecheddar]

Originally Posted by chroush

Will,

Unlike the daily newspapers in this country, the Ferrari Market Letter does not give away its content for free on the Internet. Sorry.

I'm a big believer in the concept that information is valuable, and to post it here would dramatically lessen that value.

Chris Roush

Indeed information is valuable. And my subscription to FML is overdue. Thanks Chris.

[246tasman]

Originally Posted by chroush

Will,

Unlike the daily newspapers in this country, the Ferrari Market Letter does not give away its content for free on the Internet. Sorry.

I'm a big believer in the concept that information is valuable, and to post it here would dramatically lessen that value.

Chris Roush

Chris

Quite right! Keep up the good work...

Will

[Peloton25]

I'd like to read the article too, but not necessarily enough to spend $40 for a 6th month subscription which seems to be the least expensive option that is offered. Perhaps an iTunes-like ala carte model could be adopted sometime in the future on an article by article basis?

Just a suggestion.

>8^)
ER

[chroush]

It is a valid suggestion. We're making a lot of changes, so let me see if that can be one of them.

[Napolis]

Originally Posted by chroush

It is a valid suggestion. We're making a lot of changes, so let me see if that can be one of them.

Nice and well written article Chris.

Nice shot of original chassis plate.

I assume as it would be a clear violation of their stated rules Classsiche has not certified this car as it's original chassis plate is not affixed to it today.

Am I correct?

[Peloton25]

Originally Posted by thecheddar

Just curious: What is your interest in the car? You appear to be a broker but you are involved in the daughter's case?

Originally Posted by FerrariEnzoFerrari

Really? Maybe I read it wrong, but I got a much more inherently protective vibe from his posts, i.e. that of boyfriend/lover. I'd be willing to wager... oh, hell... Joe? You put your name out there... please elucidate the connection.

I guess a few people missed this article that was linked much earlier in the thread:

Originally Posted by Kevin2772

In our paper this morning..

http://news.cincinnati.com/article/2...hits-courtroom

A portion of which reads:

Swaters, a millionaire, sued Kleve-Lawson in February in Hamilton County Common Pleas Court, accusing her of failing to transfer the title to him, breaching a 1999 contract. He seeks to prevent her from selling parts to the car, which she retained.

"The reason they are so valuable is they are strictly racing cars. They were never road cars," said R. Joseph Parker, Cincinnati attorney for Joseph Ford.

Ford came to the controversy late. He is a Boca Raton, Fla., architect who "is into classic cars," Parker said. Ford acquired Kleve-Lawson's interest in the car in exchange for Ford's help in getting it back to the U.S.

Pretty obvious from that who is playing the role of OJ here and what his motivations are.

>8^)
ER

[thecheddar]

Originally Posted by Peloton25

I guess a few people missed this article that was linked much earlier in the thread:



A portion of which reads:



Pretty obvious from that who is playing the role of OJ here and what his motivations are.

>8^)
ER

If there's one thing I've learned in dealings with the press, it's that they seldom tell the whole story and frequently get it all wrong.

Best to hear it firsthand, particularly since he's been variously reported to be an attorney, an architect and a car broker from Miami...er, Ohio.

[Peloton25]

I agree that everything in print should be questioned, however the portions of two of OJ's posts match the story supplied in the article and seem to refute some people's speculation here that he's an attorney.

Originally Posted by Ocean Joe

I should know, as I am a partner with Karl Kleve's sole claimant heir.

Originally Posted by Ocean Joe

I will ask my attorneys about it.

Now if you are saying that you don't believe what he's written here then that's an entirely different matter.

>8^)
ER

[Ocean Joe]

announcement about some media coverage that you will want to see.

I just do not yet know when to have you tune in to see it . . . yet.

I will post when and where tomorrow when I get the info.

[Ocean Joe]

It is with a local Cincinnati station but it is for an NPR (National Public Radio) airing so it likely will be national and on their website. I hear they were trying to get Swaters on the show as well.

I do not know when it airs, and will post it when I do. It could be today.