It should be clarified that Payne's name is not mentioned in any of the prospectuses sent to the plaintiffs (Ancona and Corrie). These bore the name of Debreth as the company's CEO; Kestenbaum as the company's president; the name of the law firm accompanying the projects and the details of the contract with it; and the name of the accounting firm that accompanies the projects and the contact details with it.
- Following the sending of the email message dated July 6, 2020, and on the same day, correspondence took place between Ancona and Payne regarding the question of whether Ancona should consult with an attorney regarding the loan agreement (p. 50 of the appendices to Ancona's affidavit). Fine wrote that it would be foolish of him to tell Ancona not to consult with an attorney, but 140 borrowers signed a similar agreement, and some consulted with an attorney and changed nothing. Ancona replied that he might consult with a lawyer to feel more comfortable. In response, Fine wrote that if he consulted with a lawyer, it would be better for him to do so with someone who understands TAMA 38, and added that he can refer him to lawyers who have been consulted by other investors, who are English-speaking Israeli lawyers (ibid.).
In Ancona's cross-examination, it became clear for the first time that he had actually consulted with his lawyer regarding the loan agreement. The lawyer, who is not an Israeli lawyer, told him that the transaction in Israel was outside his "jurisdiction," but that he had seen similar agreements in the past "and that it was not necessarily possible to change the contract" (p. 29 of the transcript, lines 10-14). Ancona even confirmed that before investing in real estate, he always asks for collateral, and he "usually" does so even when he invests in other investment channels (p. 28 of the transcript, lines 7-12).
Three days later, Ancona informed Payne that in consultation with his sister, it had been decided to invest $300,000. The loan agreement was then signed and the amount was transferred to the company's account.