Lost and found 1916 Gibson F2 - Need input

[Spnrclf]

And lawyers are now combing social media sites like Facebook for evidence to bring to court in cases they have pending.

My understanding is that thieves do the same looking for opportunities and targets to acquire. This is a new wrinkle on the old obituary/wedding announcement ploy: ransack the house while the family is at church.

[Randy Linam]

Regardless of what we think, or what the law states. It all depends on what the definition of "is" is. I learned that from the President of the United States, and the Chief Justice of the Supreme Court along with the Senate seemed to agree.

[Jeff Mando]

"Is you is or is you ain't my baby?" -Louis Jordan

I think we've brought up some good talking points here in this discussion. I've had three guitars stolen over the years. One, 30+ years ago, I let a friend borrow, he played in a band with me. His van was broken into and the guitar was taken. Guitar was in plain sight through the window. I paid $150 for the guitar new 20 years earlier, value at the time of the theft was $300, he hands me a check for $300, which his car insurance paid. I didn't argue. I liked the guitar, but I liked $300 better! We are still good friends with no hard feelings over this issue. My other two guitars were stolen when my house was broken into, about 25 years ago. One was recovered due to putting the word out to guitar shops. The other was never found. I filed police reports but they did not locate the guitars. They did, however, find my stolen microwave oven, which was not as exciting to get back......

My point is it can happen to anyone and it left me with a creepy feeling of being violated on several levels. Of course, it could have been worse, but I lost interest in music briefly because of it.

As discussed, this is not what we would call a traditional theft, since a loan of the instrument was involved. But, we are still talking about property that has an approximate value of $3500-5500.

[Alaskamando]

Holy smokes! I had no idea my post would generate so much discussion. I apologize to those of you who think it a waste of time. As I mentioned in my last post the collector and I have talked. He "loaned" the mandolin to Dan around 1997. The collector felt the instrument deserved to be played rather than sit in a closet. I agree. Dan kept it in his possession exclusively from the time it was handed to him until he hocked it in 2002. The collector considered Dan a good friend...went to the same church and all that. I suspect that's why a report was never filed or the police contacted. When Dan hocked it in 2002 he left town for over a year. Upon his return the collector asked him about theandolin. Dan simply said he hocked it.

I have no idea how long it was in the pawn shop before it was bought by the guy I bought it from. I have no idea how long he owned it before he decided to sell it. The gent posted it on Craigslist where I saw it and bought it. It was only on Craigslist a day or so before I snapped it up.

Though I don't want to sell it I did offer the mando to the collector for what I paid for it. He declined saying he shouldn't have to pay for something that he already bought. I told him if he changes his mind to let me know. I have been honest and forthright in my dealing with him and am able to look myself in the mirror and feel good.

Just to add fuel to the fire the Collector has Parkinson's. He is selling his collection because of that and I have no doubt he would sell the F2 if he had it. In his collection is a 1919 Gibson F4...a 1909 Gibson 3 point...and a 1991 Gibson Lloyd Loar model.

This should get even more interesting. Thanks.

[journeybear]

Thanks for the update. Good thing - facts beat fantasizing every time. Well, almost. Anyway, so many of us here are blessed/cursed with vivid imaginations, and when these are given free rein, they venture far afield.

Keep us posted!

[hank]

I'm glad to hear from Alaskamando and especially that the collector was of the mind set that the mandolin should be played. This is something we understand here. As diverse a group as the Cafe forum members may be, this is the mantra that unites and drives many of us to buy, play and preserve these beautiful creations from the past. They were built to sing but without us to play them they are mute.
I have a lot of admiration for this collector that put his F-2 in the hands of a player so it could be played instead of collecting dust in a vault or showroom display. It's horribly sad that this talented artist lost his way and hurt himself and those who loved and supported him.

[Tom C]

Tough spot. Sounds like he wants his mando back but not willing to pay. This means he may pursue legal routes. How much time do they have to do this? It would stink having this mando not knowing if you will get summoned for say...the next 7 years.... If you actually own it... or repair any thing it may need fixed. Would you play it in public knowing eyes may be on it? As I stated in past somebody has to absorb the cost and it may just be the collector if he wants it back.

[Capt. E]

It would be interesting to know if the Collector filed an insurance claim or not. I doubt if the value is high enough for the company to claim the mandolin and to sell it to recover the claim.
It is yours unless the Collector has documentation...photos, serial number, signed agreement with the musician, etc: an insurance company would have required documentation for a claim.

[Jeff Mando]

Tough spot. Sounds like he wants his mando back but not willing to pay. This means he may pursue legal routes. How much time do they have to do this? It would stink having this mando not knowing if you will get summoned for say...the next 7 years.... If you actually own it... or repair any thing it may need fixed. Would you play it in public knowing eyes may be on it? As I stated in past somebody has to absorb the cost and it may just be the collector if he wants it back.

In this situation, it seems doubtful that the collector will do anything, especially with Parkinson's. At a certain stage in life, it is just easier to let things go.

OTOH, if I saw someone playing one of my stolen guitars on stage, even 25 years later, I would walk up and take my guitar home. (I MIGHT let them finish the song....) If the new owner protested, I have the police report and serial number to back up my claim. Unlikely to happen at this point and who knows how many owners later, but just saying.....of course the "new" owner would more than likely be unaware of the background of the guitar, BUT, dem's the breaks!

I say at a certain point in life it is easier just to let it go, but my mother lives on a street that is mostly 80-90 year old widows. (funny how that works, huh?) Anyway, my mother is well-adjusted, but she has a neighbor lady that is always suing someone for something, always having her property surveyed so she knows exactly where the property line is, etc. You know the type--you could call it a mild form of mental illness or just having too much time on your hands everyday.....anyway, I remind my mom not to turn into the crazy lady next door.....

[D C Blood]

To keep this discussion on lost and/or stolen mandolins, etc, going.. 1..In (circa) 1970 I had a 1962 model D-18 guitar stolen from my car while I was playing a gig inside (I know, dumb)...Serial #186610. I filed a police report with the local police. Ever since, any time I see a D-18 I check the serial #. I have no idea if the police would still have the report on file. I never did get a copy. 2. In 1971 I was in the Air Force, about to go to Vietnam. I had a minty 1936 Gibson F-7 and a brand new Paganoni (wish I still had)..I had become good friends with a family with a couple of kids who were great pickers and singers. The mandolin picker had an A-model Gibson, but I felt he needed something better. Being as I had a great mandolin and a really good mandolin, I gave him the F-7. Not loaned, gave. Over the ears, I lost track of the family. I had left the Air Force and moved to Nashville. Last time I saw the family was 1974. They were just getting ready to move to Alaska. I believe they went to Fairbanks. I didn't hear from them again. When I finally found them again, last year, I learned that the F-7 had been stolen from them and there had been two deaths in the family. I would love to know if any of you folks up there in Alaska remember or know of anyone who bought an F-7 maybe at bargain price or under suspicious circumstances...At this point nothing could probably be proved, and I don't know if my friend ever filed a report. Anyway, If you are going to let someone deserving have an instrument...give it to them, don't loan it to them...

[Jeff Mando]

The ownership saga of the F2 shows some parallels to real estate deeds, namely a warranty deed vs. a quitclaim deed. Basically showing levels of ownership, as already discussed by some of the legal experts here. A warranty deed guarantees you own your home, while a quitclaim deed has no guarantee. But, even with a title search having been performed, as I understand it, a warranty deed can still be challenged, but you would be covered for your purchase price if other ownership could be proven. In other words, it gives you a couple more layers of protection. Like I say, different levels of ownership that mostly apply to things of a higher cost. In other words, if I ate a candy bar and couldn't prove ownership, it is unlikely that somebody would want the candy bar back--if I understand the concept....

[Spnrclf]

Jeff you are on the right track.

I would like to save Alaskamandolin and the collector time, money and aggravation. I will offer some of what I found during my research of Alaskamando's question this week. I will try to reduce the amount of legal jargon, but any question of ownership is a legal question first. You may think to yourself that possession is nine tenths of the law. This is the other tenth that possession does not cover.

Stevedenver, I looked in the Uniform Laws Annotated for a model act or uniform statute that covered “civil theft”. I did not find one. I also researched Massachusetts, (where I am), and Alaska, without finding a civil theft statute for those states. I did find Colorado state cases that deal with the topic and found that the West Key Numbers and Topics equate conversion with civil theft. This suggests to me that they are equivalent conceptually. Conversion remains a strong possibility for the collector.

I ran this question past my colleague who teaches Secured Transactions for his reaction to this situation. He pointed me to the Uniform Commercial Code, section 2-403.
The equivalent Alaska statute is:Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

These statutes read:
Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

"(a) A purchaser of goods acquires all title which the transferor had or had power to transfer, except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. (...)"

I interpret this language to mean that the mando-player could only convey those rights that the owner gave the player, to borrow the mandolin. All other rights to ownership remained with the owner. As the player held no title to the mandolin he could not sell the instrument.
Initially I thought perhaps the “entrusting” section of the statute would provide an ownership argument to Alaskamandolin. However, that section must be read in conjunction with the preceding section on conveyance of title. It is clear that the pawnshop could not convey clear title to the Craigslist seller, and the Craigslist seller could not convey title to Alaskamandolin. All of this is to say, the collector is still the owner.
Normally a tort in Alaska has a 2 year statute of limitations. However, Alaska extended the statute of limitations under AK ST section 09.10.050 for property, including personal property, to six years. So collector could continue to pursue this for 6 years.
Some states begin the timer on statute of limitations with discovery, some with the issue of a demand letter. I did not find out what Alaska does with starting this timer.
Should Alaskamandolin ignore the demand for the return of the mando, he could get perfect title to it by “adverse possession”, which can apply to personal property as well as to land. If the collector does not go to court the mandolin would become Alaskamandolin's property after 6 years.
Collector can respond to this strategy by going to small claims court and getting a writ of replevin, requiring the return of the mando instead. Collector should make for a wonderful plaintiff in court as he will be visibly ill, and should bring witnesses from his church as witnesses to the loan of the mandolin.
If collector passes away, his estate can pursue this action. He is likely to be in financial need due to ill health and his administrator will probably be aware of the existence this asset that could be converted into cash to pay debts or for inheritance, especially if he leaves a spouse. A good administrator will be aggressive about pursuing this issue including going to court.
Alaskamandolin, if you were my best friend my advice would be to see if collector would consider a partnership to sell the mandolin. Get a dealer who would take it on consignment at a good market price. Then divide the proceeds according to the proportion to which you are both invested in the instrument. That would be: if he paid $2K and you paid $3K, and you sell at $4K, he receives $1,600, and you receive $2,400. Otherwise, one of you gets zero.

My guess would be that you are most vulnerable in this situation. This is my best advice as a lawyer and a friend. Good luck.
Spencer

[Tobin]

By the time the collector paid an attorney and court fees, I doubt this mandolin would gain him anything financially. He might be worse off, actually. As usual, nobody would come out on top except the lawyers. No offense to the attorneys in this thread, but it is very cost prohibitive to pursue things like this. And the time line to get through the legal process is not favorable to a man with a terminal disease.

[jim simpson]

If the collector (or his estate) did pursue legal action, where does that leave all of those in the chain prior to our Alaskan friend's possession?

[jljohn]

Jeff you are on the right track.

I ran this question past my colleague who teaches Secured Transactions for his reaction to this situation. He pointed me to the Uniform Commercial Code, section 2-403.
The equivalent Alaska statute is:Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

These statutes read:
Sec. 45.02.403. Power to transfer; good faith purchase of goods; ""entrusting.''.

"(a) A purchaser of goods acquires all title which the transferor had or had power to transfer, except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. (...)"

Spencer,

Haven't you cut off the most relevant language of UCC 2-403 to this situation?:

"A person with voidable title has power to transfer a good title to a good faithpurchaser for value. When goods have been delivered under a transaction of purchase the purchaser has such power even though

...

(d) the delivery was procured through fraud punishable as larcenous under the criminal law."

Wouldn't it be the case that if the mandolin was initially procured through theft no title could pass, despite a good faith purchase for value, but if the mandolin was procured via fraud, then the pawn shop would have had a voidable title that was conveyed as good title to a good faith purchaser for value? If this reading is correct, then the relevant question is really a factual one--was the sale of the mandolin to the pawn shop an act of theft or fraud, right?

This is a serious question. Dan did not acquire the mandolin by theft. It was willingly placed in his possession by the collector. Under the law, isn't his transaction with the pawn shop an act of fraud and not theft?

Of course this all assumes that AK has adopted the UCC and that pawn shops are not exempted somehow.

[Spnrclf]

Tobin, the collector could proceed pro se, without an attorney, probably in small claims court. Then he would only have a filing fee.

JlJohn, this isn't a voidable title situation. If collector had sold the mandolin to Dan and Dan's check had bounced, then there would have been a voidable title by the collector. And then, you would be correct, the pawn shop would have been able to convey title even if there had been a fraudulent intent on Dan's part. This is not the situation. Dan used the mandolin as collateral on a loan, indicating there was no intent to sell the mandolin. But, if he had sold it, he did not have any title to convey, and according to the wording of the statute, he could only convey the title he held which was none. Note that the statute I am using is from Alaska. Collector can take that to court. The UCC is adopted by every state but Louisiana, and they have an equivalent.
Pawnshops would qualify under the entrustment section of the statute and be able to convey good title if they had received the mandolin from the legal owner. Here they did not. The person they received the mandolin from did not have the authority to use the mandolin as collateral for a loan. The pawnshop could only convey what title they received and they received no title.
I have not looked at what the rights of subsequent purchasers are in the chain. I would think they would have recourse against each prior seller up to the pawnshop having recourse against Dan. But he is now judgement proof. This is why I would recommend the solution I did. It allows Alaskamandolin and the collector an opportunity to cut their losses by equitably sharing the pain without going to court, or involving more attorneys. This is what I would recommend to any friend of mine.

[Spnrclf]

JlJohn, that was a great question. Thanks for asking.

[MikeEdgerton]

With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.

[Jeff Mando]

With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.

Interesting point, Mike! What happens to the firearm once the insurance company gets it? Does it get sold? At auction? Ebay?

[MikeEdgerton]

In this case we simply asked the police department to destroy it. Not a lot of value in the item. Now, if it had been a vintage mandolin I might have had it shipped here so I could buy it from the company.

[FLATROCK HILL]

With regards to insurance claims, the company I work for paid a claim on a stolen firearm in 1982. Two years ago that firearm was recovered by the police in a state half way across the country from where it was stolen some 30 years earlier. As we had paid the claim the firearm belonged to us. If the collector had filed a claim with us (apparently he didn't file with anyone) and that mandolin came to our attention, we would own it no matter who bought it from whom. Carry on.

Well Mike, that makes perfect sense. From my experience, in order for the insurance company to compensate the rightful owner for the loss, the owner signs away his or her ownership to the insurance company.

The interesting thing would be to see how the claim in this case would be handled. The owner allowed someone to borrow the item and evidently didn't know of the subsequent change of hands or when that transfer occurred. Would the insurance co have paid?

I only ask because I know from experience that the 'way' you present the facts to the insurer has some bearing on how they handle the claim. For instance, let's say you discover your vehicle has been damaged in a parking lot when you return to it. Was it accidentally hit by another vehicle or was it vandalized? You may not really know for sure, but your coverage may depend on how you present your case to the insurer.

[Austin Bob]

First, I would like to commend the OP for contacting the collector directly, that showed class and integrity.

I'm no lawyer, but to me there are way too many details we do not know to hazard a guess as to how a court of law would rule on this. We simply do not know the exact details of what transpired between Dan and the collector when the mandolin first changed hands, or what documentation the collector has of the transaction. Nor do we know if an insurance claim was ever filed. But since he did not file a police report, I would assume the burden of proof would be on the collector to demonstrate the mandolin was in fact stolen.

What we have is a difference of opinion: the OP paid for the mandolin, and therefore assumes he has clear title unless proven otherwise. The collector's opinion is that he was the victim of theft, and therefore should not have to pay the OP to have the mandolin returned. This is exactly why we have civil courts to decide such matters, otherwise the biggest guy or the fastest draw always wins.

Me, I'm fairly quick for a big guy.

[MikeEdgerton]

Well Mike, that makes perfect sense. From my experience, in order for the insurance company to compensate the rightful owner for the loss, the owner signs away his or her ownership to the insurance company.

The interesting thing would be to see how the claim in this case would be handled. The owner allowed someone to borrow the item and evidently didn't know of the subsequent change of hands or when that transfer occurred. Would the insurance co have paid?

I only ask because I know from experience that the 'way' you present the facts to the insurer has some bearing on how they handle the claim. For instance, let's say you discover your vehicle has been damaged in a parking lot when you return to it. Was it accidentally hit by another vehicle or was it vandalized? You may not really know for sure, but your coverage may depend on how you present your case to the insurer.

I think you'd be hard pressed to make an insurance claim this late in the game, although you certainly could attempt it. It might be hard to prove the loss after this much time and I also think it might be a little late to file a police report although you certainly could try. You'd have to prove the loss to the insurance company and have a real good reason as to why you're trying to make the claim at such a late date. Claims do get filed years after policies expire but they generally aren't for property loss like this.

So to answer the other part of the question it's not just how you present a claim but also when you present the claim. Most insurance companies aren't looking to pay out money unless they have to and on something like this they could probably tie it up for a long time. What you need is a timely claim with proof as to what took place. A police report that the item was stolen, a signed agreement that someone didn't live up to, etc. You need to be able to justify the loss in a manner that is believable. In this case you'd eat up attorney fees well beyond the value of the instrument pretty quickly.

[Tobin]

Tobin, the collector could proceed pro se, without an attorney, probably in small claims court. Then he would only have a filing fee.

True, I suppose he could. And not knowing anything about this collector, maybe it is within his means. But if I were to guess, a fellow with Parkinson's, not knowing the intricacies of the law (I think we agree this is a complicated case that requires some legal background in order to make a coherent case based on statute and precedent), it seems unlikely. This is, after all, why we regular folk have to hire attorneys. We can't just stand up in front of a judge and say, "that mandolin belongs to me and I want it back". It must be filed as a particular type of suit, with the correct legal language and paperwork, and facts presented in the correct manner, with references to supporting statutes, lest it be dismissed on a technicality. I don't know any normal person who has the know-how to do such a thing. Surely the banter in this thread demonstrates the legal knowledge of the average Joe.

So even though representing oneself may be technically possible, I daresay it's not realistic.

[Spnrclf]

You are right, Tobin. I looked at the Alaska Small Claims Court Handbook and he could not use that process. He would likely need a lawyer to proceed in District Court.