Civil Case (Rishon LeZion) 27585-12-21 Yom Tov Levy v. Hevel Modi’in Regional Council - part 2

I am also attaching proof.

With thanks, Yomi Levi *********"

5. On April 13, 2020, the plaintiff sent another email to another email address in the defendant, as follows:

"Levi Yom Tov *********

Tax Breaks 0800000201

I gave the dog to the Animal Welfare Department in 2016 and the reports from 2017.

Below I have attached proof.

Please stop bothering and stressing me especially

During this difficult time.  Thank you."

6. Although no response was received from the defendant, the plaintiff claimed that he assumed that the matter had thus come to an end (pp. 30, 24-26).  However, as it turns out, the plaintiff's requests were not dealt with at all, according to the claim, "because they were transferred to spam in the council" (paragraph 21 of the defendant's affidavit).
7. On July 11, 2021, the defendant imposed foreclosures on two of the plaintiff's bank accounts, at Bank Leumi and Bank Hapoalim, for a total sum of ILS 1,710. Upon learning of the foreclosures, the plaintiff contacted the defendant by telephone, and spoke with a representative named Shir (the transcript of the conversation was attached as Appendix 6 to the plaintiff's affidavit).  In addition, on July 15, 2021, he emailed the defendant as follows:

"Following the conversation with Shir

I explained that I had sent all the forms a year and a half before the dog was delivered before the deadlines of the reports.

The foreclosure that you have done to me is a harm to me because you have foreclosed on me

My personal and business account.

The bank views this very seriously.

The 15th day of the month and checks for suppliers may not be honored.

I ask that this foreclosure be removed immediately.

The aforesaid was written without derogating from any right or claim.

With thanks, Yomi Levi."

8. On the same day, a response was sent from the defendant as follows, with notices of the cancellation of the foreclosures attached:

"Hey,

The foreclosure was by mistake and does not belong to you, so it was canceled.

Good day."

9. It should be noted that the defendant's declarant claimed in his affidavit (para. 23) that "in canceling the foreclosures and fines retroactively, I acted against the plaintiff beyond the letter of the law, because according to the law, there was no real reason for him to cancel the fines and foreclosures and he should have paid them."
10. The parties' arguments
    • 1. The plaintiff's arguments
11. The plaintiff claims that the defendant breached all the basic duties imposed on her: ignored his inquiries and the evidence proving that he did not own the dog at the time of the alleged offenses; imposed foreclosures on his bank accounts without minimal inspection and without prior warning; She admitted that the foreclosure was in error, but nevertheless refused to compensate the plaintiff for the injury caused to him.
12. The plaintiff claims that the reports never reached him, and he first learned of them in April 2020. Had the defendant acted lawfully and produced the reports in real time, he would have acted to cancel them in a timely manner.
    • The report dated June 23, 2017, was sent, according to the defendant's documents, to the address "20 Levinsky, Beit Arif", with the plaintiff's registered address at the relevant time being "20 Levinsky St., Tel Aviv". The mail item tracking output shows that "there is no data for the requested barcode", indicating that the mail item was probably never sent.
    • The report dated December 17, 2017 was returned to the defendant for the reason that "the recipient is not known by address". In other words, the post was not delivered.
    • The fine notice letter dated October 9, 2018 - attached as Appendix A to the defendant's affidavit together with an institutional certificate from the Ministry of Interior regarding the plaintiff's addresses (Appendix B to the defendant's affidavit). However, this record shows that in May 2018, the plaintiff's address was changed, and nevertheless, the notice of the fine was sent to his old address.
    • From the aforesaid it appears that the plaintiff contradicted the presumption of delivery claimed by the defendant. By its negligence, the defendant prevented the plaintiff from obtaining the fines in a timely manner.  Since a year has passed since the date of the offense without the notices being served to the prosecutor, the offense has become statute of limitations by virtue of section 225(a) of the Criminal Procedure Law [Consolidated Version], 5742-1982, and there was no basis for the demand for payment that was sent in April 2020.
13. Upon receipt of the demand letter, in April 2020, the plaintiff acted immediately to cancel the reports. The defendant's claim that the two emails (sent to different addresses) ended up in spam is unreasonable, and in the plaintiff's conversation with representative Shir (who was not summoned to testify by the defendant), she did not mention this fact, but rather noted that she was able to view the messages.  The defendant admitted - a litigant's admission - in an email dated July 15, 2021 that the foreclosure originated in error and was therefore canceled, an admission that the defendant chose to disavow.
14. The plaintiff claims that the defendant does not have a presumption of delivery, and that it acted negligently, carelessly and arbitrarily when it abused its powers to collect fines, when it imposed foreclosures on the plaintiff's accounts. If the defendant had made sure that the plaintiff had received the demand or warning, it would have become clear in real time that the fines should be canceled.  In doing so, she violated the provisions of the Prohibition of Defamation Law, in a manner that justifies her obligation to pay full statutory compensation.  The case law recognized that the imposition of unlawful foreclosures on a bank account may constitute defamatory publication, even when it comes to a small amount of foreclosure, since such a foreclosure presents a person as someone who is not paying his debts, a publication that is liable to degrade the person, humiliate him in the eyes of the public, and damage his good name.  The defendant has no defense claim whatsoever by virtue of the Prohibition of Defamation Law.
15. The defendant refrained from testifying key witnesses who drafted the documents she attached, and therefore they should be given zero weight, if at all. The defendant caused evidentiary damage by not attaching a copy of the original reports, while the copies of the reports changed material details, including the registered address.
16. The plaintiff claims that he is entitled to significant compensation from the defendant, not only in light of the nature of the injury and the circumstances of the publication, but also because of the additional serious injury caused by the defendant during the conduct of the proceeding in question. These are two separate foreclosures in two different banks.  The defendant conducted itself in an abusive and predatory manner in the conduct of the proceeding, flooded the court with dozens of frivolous motions, disrupted the proceeding, exhausted the plaintiff and made the legal process more expensive, worded in a derogatory and abusive manner, and ignored the provisions of the Civil Procedure Regulations and the court's decisions.  Moreover, during the course of the proceeding, she snatched up another execution case against the plaintiff, causing additional damage.
    • 2. The defendant's arguments
17. The defendant argues that this is a baseless claim, devoid of any cause, in which the plaintiff seeks to receive compensation in an amount that no court in Israel has ruled in similar factual circumstances. The defendant acted lawfully without any fault in her conduct, and even though she canceled the foreclosures and fines, beyond the letter of the law, she found herself dragged into court in an idle proceeding.  According to the defendant, these are trivial matters.
18. According to the defendant, the fines were sent to the plaintiff, according to his updated address at the Ministry of the Interior. The defendant has a link to the Ministry of Interior website.  Whenever a copy of the report is printed, the copy will include the plaintiff's current address, as it was at the time the report was printed.
19. The defendant claims that all the reports (manual and printed) were sent to him by registered mail, and therefore he either chose to ignore them or did not take them from the mail. The plaintiff "woke up" when he received a warning before taking proceedings.  The inscription "Beit Arif" on the concentration of the shipments was written in handwriting, but this is a mistake by the person who wrote it in handwriting.  The Ministry of Interior's printout proves that all the mail shipments to the plaintiff were made to his registered address with the Ministry of Interior.  According to the defendant, there is a presumption of delivery of the reports.  The plaintiff never petitioned for the cancellation of the reports, by way of a request to be tried or an extension of the date for their cancellation.  From the restoration of the presumption of delivery, the defendant acted in accordance with the law prior to the imposition of the foreclosures, and the plaintiff has no cause of action against her.  The fine options have become final, and the plaintiff no longer has the right to argue against them.
20. The defendant has the presumption of propriety of the administrative act. The burden of proof to refute this presumption is on the plaintiff.
21. The plaintiff's letter from April 2020 went to the spam box. The plaintiff did not verify receipt of his request from the defendant.  Had he done so, the mishap would have been avoided and his request would have been dealt with, already at that time.  He has no choice but to complain about himself.
22. Only if the plaintiff had been able to prove that the foreclosures were imposed unlawfully, would he have had a cause of action. However, the defendant acted lawfully, in good faith, and there was no fault in its conduct.  The plaintiff had a number of opportunities, over the years, to prevent the process that ended in the imposition of the foreclosures, but he did not do so.
23. The defendant adds that the case law did indeed recognize the imposition of an unlawful foreclosure on a person's bank account as a tort under the Prohibition of Defamation Law. However, in the present case, it was not proven that the foreclosures were imposed unlawfully, on the contrary.
24. In addition, in the present case, on the dates on which the plaintiff's accounts were seized, checks were not presented for payment (as approved by the plaintiff). The plaintiff tried to create the appearance of returning checks, in order to glorify the damage to him, even though there had never been such a thing.  According to the defendant, not a word in the plaintiff's claims and his descriptions of the foreclosure damages is true:

The bank's letter attached to its affidavit did not mention any restrictions or restrictions; The plaintiff confirmed in his cross-examination that there were no restrictions in his account at Bank Leumi; The claim of downgrading the credit rating has not been proven; It was claimed that the possibility of making payments through the app was prevented, and as a result, he was forced to look for checks in order to make payments.  However, an examination of the account pages shows that there were no checks, and that they were all fairy tales; The defendant canceled the foreclosures on the same day that the plaintiff contacted her; There is no truth or logic in the plaintiff's descriptions of the damages caused to him; The plaintiff confirmed that no checks were returned, did not remember whether any payments were delayed, and confirmed that he did not postpone any payments to the suppliers as a result of the foreclosure.  It appears from the accounts that there is not a single charge that was not honored by the bank or an action that the plaintiff was prevented from performing; The plaintiff confirmed that he had moved to another bank, so the "image" damage he claimed did not happen either.

24. The plaintiff is accustomed to such proceedings, just as the defendant was forced to take execution proceedings in order to collect expenses in the sum of ILS 750 that were ruled in her favor in the present proceeding. Despite the execution proceedings taken against him, the plaintiff's world was not destroyed and he was not astonished.  The plaintiff is not moved by legal proceedings and execution proceedings, he is indifferent to them.

The conclusion is that the foreclosures did not harm the plaintiff and did not cause him any damage.

25. This is a foreclosure for a negligible sum of ILS 1,710, when the plaintiff's account at Bank Leumi at that time had a credit balance of ILS 118,000 and his account at Bank Hapoalim had a credit balance of ILS 139,000 and a credit line even larger.
26. According to the defendant, this is a lawsuit that was filed with an improper motive, and filing a lawsuit for an unreasonable amount "for nothing and nothing" should keep us sleeping. According to the defendant, the plaintiff chose "to treat the defendant with bullying and predatory conduct, without any basis in the evidence or reality."
27. With regard to the email message sent to the plaintiff stating that the foreclosures were imposed in error, the defendant claims that this was an act beyond the letter of the law, without any real reason to cancel the fines and foreclosures, and that this was an "unsuccessful formulation". If the defendant had imagined that the plaintiff was "sewing" a case against her for defamation, she would have acted against him according to the line of the law and would not have canceled anything.
    • 3. Plaintiff's Response Summaries
28. In his summaries, the plaintiff points to the blunt, abusive and defamatory language used by the defendant towards the plaintiff and his counsel in its summaries and throughout the proceeding.
29. The plaintiff claims that he raised the burden to contradict the presumption of delivery, and therefore the defendant imposed foreclosures on his accounts arbitrarily and without prior warning. The defendant herself admitted that the foreclosure was in error, which constitutes an admission by a litigant.
30. The plaintiff claims that the defendant refrained from testifying the authors of the documents on which it relied, even though she mentioned these witnesses in the list of witnesses on her behalf. Despite this, the defendant reiterates its arguments regarding those documents, which have no weight in the absence of their editors.  Tam's testimony is hearsay, and nothing more.
31. The defendant is puzzlingly ignoring the order she requested and received from the court to produce information from the Israel Post, which was intended to prove the delivery of the reports to the plaintiff. After the order was received, the defendant never submitted to the court the information received (if received) as a result of it.  Tam did not know how to explain this in his testimony.
32. The defendant refrained from dealing with a long list of material arguments raised by the plaintiff and continues to insist on the presumption of delivery, which was contradicted by the plaintiff. The defendant is trying to blame the plaintiff for not verifying receipt of his request from April 2020, while the plaintiff contacted the defendant's official addresses by email.  The authority is obligated to handle public inquiries, and not the other way around.  In a conversation with the defendant's representative, Shir, she admitted that she had seen the emails sent by the plaintiff.
33. Since the defendant admitted that the foreclosure was in error, she is not entitled to claim in retrospect that the cancellation was done beyond the letter of the law. The fact that the defendant chose to cancel the foreclosures on the same day that the plaintiff contacted her, testifies that she understood that she had acted illegally.
34. As for the issue of damage, the case law has held that the very imposition of a foreclosure unlawfully constitutes damage to the good name, regardless of the amount of the foreclosure and without the need to prove specific damage. The Prohibition of Defamation Law allows for the award of damages without proof of damage.  It is well known that imposing a foreclosure on a bank account has an impact on the credit rating in the long term.
35. The defendant did everything in her power to prolong the proceeding, exhaust the plaintiff and cause him many additional expenses, while filing dozens of frivolous motions, acting while breaching procedural boundaries, in contravention of the legal procedures, and with degrading and aggressive verbal abuse.
36. In addition, under the auspices of an iron sword war, the defendant "created" a writ of execution case in a snatch, abusing the proceeding, in order to rehabilitate its claim that the plaintiff was not harmed by the imposition of the foreclosures, with complete indifference to the enormous damage that this move would cause to the plaintiff.
37. The defendant did not establish any defense under the Prohibition of Defamation Law.

• Discussion and Decision
  • 1. Imposing an unlawful foreclosure as establishing a cause of action under the Prohibition of Defamation Law

38. As of the time of writing, the legal question of whether, and under what conditions, the imposition of a foreclosure may constitute a cause of action under the Prohibition of Defamation Law, has not yet been decided by the Supreme Court. However, it is possible to find in the case law of the district courts and the magistrate's courts a position in favor of the fact that the imposition of a foreclosure is in fact unjustified by the publication of defamation against the person against whom the foreclosure was imposed.  For a review of the case law on this matter, see Civil Case (Central Department) 30783-01-18 Ben Haim v.  Gilboa [Nevo] (February 3, 2021), where it was noted that in some cases these were foreclosures imposed by authorities unlawfully on the basis of the Tax Ordinance (Collection); others related to foreclosures that were mistakenly imposed on parties who were not the debtors; or cases in which notices were sent to the holders after a foreclosure imposed had expired (see also Civil Appeal (Hai Department) 18723-03-17 Raja v.  Hadera Municipality Parking Authority [Nevo] (December 11, 2017)).
39. The guiding judgment on this matter was given in Other Municipal Applications (Jerusalem Department) 45661-12-10 Gessler v. Municipality of Y.Rochelim [Nevo] (March 24, 2011) ("the Gessler Case").  In that matter, we were dealing with a debt in respect of a parking ticket in the sum of ILS 70, which swelled over the years, when for 12 years notices were sent to an address that turned out (retroactively) to be not the plaintiff's address, while the demands were repeated with the indication "not required", until finally a foreclosure in the amount of ILS 441 was imposed on the accounts of the plaintiff, a lawyer by profession.  With the imposition of the foreclosure, the plaintiff paid the debt.  The District Court ruled that "in principle, the imposition of a seizure on bank accounts can constitute defamatory publication," as defined in section 1 of the Prohibition of Defamation Law.  This is because "the very presentation of the appellant, as someone who ostensibly evades paying his debts, is capable of humiliating him and damaging his good name, in the eyes of a reasonable banker, regardless of the amount of the foreclosure.  This is especially in view of the fact that the appellant is a lawyer by profession, so that the publication of the foreclosure was also liable to harm his profession" (ibid., para.  7).  It was also held there that the element of publication exists, as defined in section 2 of the Prohibition of Defamation Law, because it is a written publication that was sent to the banks in which the appellant had an account name.
40. In our case, too, I will assume that the imposition of a foreclosure on the plaintiff's accounts fulfills the element of publication and the element of "defamation", in accordance with sections 1-2 of the Prohibition of Defamation Law. The defendant does not dispute this starting point.  It should also be noted, already now, in the examination of the latter, that in its summaries the defendant did not claim any defense claim by virtue of sections 14-15 of the Prohibition of Defamation Law, but focused on the claim that the imposition of the foreclosure was done lawfully, and that in any case no damage was caused to the plaintiff.
    • 2. Were the foreclosures imposed unlawfully?
41. The defendant claims that all the fine notices and debt demands were sent to the plaintiff's registered address at the Ministry of the Interior, by registered mail, and therefore it has the presumption of delivery. Since the notices were sent lawfully, the time available to the plaintiff to request to be tried or cancelled has passed, and hence the foreclosure was lawfully imposed.
    • 2.I. The Presumption of Delivery in Fine Offenses
42. The reports that are the subject of the foreclosures in this case were imposed by virtue of the defendant's municipal bylaw. This is a fine offense that is subject to Chapter 7 of the Criminal Procedure Law [Consolidated Version], 5742-1982 (the "Criminal Procedure Law").  The original amount of the fine for each of the offenses is 475 ILS.  The delivery of the notice of fine by lawful submission, as stated in section 228(b) of the Criminal Procedure Law, is what opens the criminal proceedings against the defendant.
43. Regulation 44A of the Criminal Procedure Regulations, 5734-1974 establishes a presumption of delivery in the case of fine offenses:

"In traffic offenses to which section 239A of the Law applies, and in fine offenses, the notice of the commission of the offense, the notice of payment of a fine or the summons to trial in respect of a fine offense shall be regarded as if it had been lawfully produced even without signing the confirmation of delivery, if fifteen days have elapsed from the date it was sent by registered mail, unless the recipient proves that he did not receive the notice or the invitation for reasons that are not dependent on him and not due to his refusal to receive it."

44. Section 225 of the Criminal Procedure Law states that a fine offense becomes statute of limitations within one year from the date of its commission, if no indictment has been filed against it and no notice of payment of a fine has been produced in respect of it under section 228(b) of the same law. The declarant on behalf of the defendant stated that the defendant's work procedure was that the manual report was first sent, and within about a year, and if the fine had not yet been paid, the report was sent again, printed out, according to the same details and address in the manual report.
45. The penalty - the fine - becomes obsolete within three years from the day it becomes final. The fine becomes final if it is not paid on time and the recipient of the notice has not announced that he wishes to be tried for the offense, or alternatively has submitted a request for its cancellation, in accordance with the times set out in section 229 of the Criminal Procedure Law.  Section 229(b) of the same law applies to the fine section 70 of the Penal Law, 5737-1977, which states that, "If a fine is not paid on time, the provisions of the Tax Ordinance (Collection) will apply to its collection as if it were a tax within the meaning of that Ordinance."
46. Section 12B of the Tax Ordinance (Collection) states: "A notice, demand, order or any other document that must be produced in accordance with this Ordinance shall be deemed to have been lawfully produced if it was delivered to the person who was intended, or placed at his place of residence or in his usual place of business, or sent there in his name by mail, provided that a foreclosure order to a third party, which is a bank, as well as a notice of the sale of movables shall be sent by registered mail." This is an additional presumption of delivery.
    • 2.II. From the general to the individual - whether the presumption of delivery was fulfilled in our case

(1) Handwritten fine notices

47. In our case, the plaintiff was sent, according to the defendant, the handwritten reports on June 17-26, 2017 and December 19, 2017. The defendant's declarant claimed in his affidavit that "initially, the manual report was sent according to the details received, to the person's registered address.  The council does not leave a copy of the manual report." The defendant attached, as Appendix C to Mr. Asher Tam's affidavit, the summary of the shipment of registered mail items for the dates June 26, 2017 and December 19, 2017.  There is no dispute that at that time, the plaintiff's registered address at the Ministry of the Interior was 20 Levinsky St., Tel Aviv.
48. The certificate relating to June 26, 2017 indicates that the address was written in handwriting: "20 Levinsky St., Beit Arif." It is clear that this is not the plaintiff's registered address. The defendant's documents indicate that in relation to the postal item that this is his number, it appears on the Postal Authority's website: "There is no data for the requested barcode." It is therefore clear that in the matter of this manual report there is no evidence whatsoever of sending it to the plaintiff's registered address.
49. It is not superfluous to note at this stage that the defendant requested and received an order addressed to the Postal Authority instructing it to provide information regarding the delivery of the mail. However, the defendant never submitted to the court the information she received from the Postal Authority, which acts in accordance with her obligation, and shows that if she had presented this information, it would have acted upon her obligation.  It should be noted that Mr. Tam could not explain why the information was not presented (see p.  45).
50. As for the mail of December 19, 2017, from Appendix C to Asher Tam's affidavit, it appears that it was allegedly sent to the plaintiff's address, Levinsky 20/1, Tel Aviv.
51. However, with regard to the aforementioned postal item, it appears on the Postal Authority's website (according to the defendant's appendices): "The said mail item was received for delivery on December 20, 2017 through the Airport City Postal Unit at Lod Airport. The said postal item was delivered back to the sender on 15/01/2018 through the Shoham Postal Unit in Shoham, since the address is not known in the address stated on the postal item."
52. Regulation 44A of the Criminal Procedure Regulations establishes a presumption in law according to which, after 15 days from the date of sending the notice by registered mail, the notice will be considered to have been duly invented, even without a signature on the delivery confirmation. A presumption can be rebutted if the recipient proves that he did not receive the message "for reasons that are not dependent on him and not due to his refusal to receive it." This regulation is known to establish a "presumption of delivery", which can be contradicted, but the burden of contradicting it rests on the shoulders of the recipient.  In Civil Appeal 5255/11 Herzliya Municipality v.  Kerem [Nevo] (June 11, 2013) (the "Kerem case"), the presumptions of delivery and their purposes were discussed at length, particularly in the context of fine offenses.  It was held there that "the rules for the production of documents - the purpose of which is to inform the recipient of the proceedings being conducted against him - reflect the balance established by the legislature between these interests" (a balance between the interest in providing the maximum information and the scope of resources that both parties to the proceeding are required to invest in it) (paragraph 18 of the judgment).
53. It was further held in the Kerem case (paragraph 20 of the judgment) that "the presumption of delivery by mail is based on a twofold reason: one concerns the legal obligation of every resident to update the population registry of any change in his address... The second reason lies in life experience and common sense, which teach that a document sent by mail reaches its destination in the vast majority of cases...  The legislature determined that the combination of these reasons justifies determining as a factual finding that a document sent in accordance with the relevant legislation...  has reached its destination; This is sufficient to establish constructive knowledge of the defendant or the debtor about the proceedings being conducted against him."

In addition, the Supreme Court noted that for the most part, "where the notice was not required at the address to which it was sent, the reason for doing so usually lies in the recipient.  One possibility is that the recipient changed his address without fulfilling the obligation to update the population registry; Another possibility is that the recipient did not demand the message for various reasons related to it, including an attempt to evade payment.  In both of these situations, the legislature determined that the recipient should be considered as having received the document sent to him.  This is a normative determination that attributes to the recipient's obligation not to fulfill the obligations imposed on him by law to update an address and to demand registered mail sent to him by a competent authority.  Another possibility is that some glitch occurred that caused the recipient not to receive the message for reasons unrelated to it.  In such situations - which are within the scope of the exception and exception - Regulation 44A of the Criminal Procedure Regulations allows the recipient to try to contradict the presumption.  If it succeeds in doing so, the court will determine that the invention was unlawful" (ibid., para.  20 of the judgment).