According to the defendant, under these circumstances, the defendant cannot transfer her personal obligation to disclose and explain to the plaintiff to a third party - a lawyer who signed the documents and confirmed that he explained their meaning to her. First, the duty of disclosure imposed on the lender is a personal and statutory duty.
In addition, it was argued that this applies even more strongly given that the witnesses on behalf of the defendant admitted that they themselves did not even speak with Adv. Winder (who, according to the defendant, came in her shoes) and did not verify that he did indeed explain to the plaintiff the significance of the transaction she signed, and also admitted that they did not pay Adv. Winder for the treatment, so that he had no reason to perform the defendant's duties.
- The plaintiff further argues that the defendant's claim that the plaintiff is prevented from claiming a lack of understanding since she signed no less than 112 signatures should be rejected, since this fact illustrates even more strongly the intensity of the defendant's omission. This is because such a significant number of signatures obligated the defendant to proactively and clearly verify that the plaintiff understood the documents she signed. The plaintiff further notes that the defendant's witnesses were unable to explain why the plaintiff was referred to an attorney on her behalf and claimed in this matter, but that this was the defendant's procedure.
- Moreover, according to the plaintiff, Adv. Winder did not explain anything to her, the meeting with him lasted a short time and she only signed the documents. It was argued that support for this can be found in Feldman's testimony, according to which the purpose of the signature in front of the lawyer was only to identify the signatories, and no explanation was given. Moreover, it was argued that it was proven, from the testimony of Adv. Winder himself, that he did not explain anything to the plaintiff. As for Adv. Winder's testimony, it was first clarified that this was an interested witness who wished to defend his signature. It was further argued that this was a witness whose reliability should be questioned even since it became clear that his memory was selective and he claimed many times that he did not remember. In addition, it was claimed that the testimony of this witness was not coherent. Thus, according to the plaintiff, as part of his testimony, the witness claimed that he tried to warn the plaintiff and her husband not to carry out the transaction because it was a "murderous interest" and that they would "lose their home." First, however, it appears from the testimony itself that the warning was directed at Feldman, and therefore it is only that Adv. Winder did not warn the plaintiff. In addition, in the framework of Adv. Winder's recording, which according to the plaintiff was presented to the court (and already at this stage in a parenteral, I will note that contrary to what is claimed - the tape was not presented and was not submitted in the proceeding - see what is stated on page 53 of the minutes of the hearing) - there is no documentation of such a warning that Adv. Winder allegedly warned the plaintiff and her husband. Moreover, Adv. Winder's arguments regarding the so-called warning contradict his testimony in which he did not remember many details and the recording in which he explicitly admitted that he did not remember the signing at all.
- Moreover, according to the plaintiff, from the testimony of Adv. Winder it became clear that he himself did not understand theFair Credit Law and therefore it is clear that he could not explain the provisions of the agreement relating to this law to the plaintiff. It was also clarified in his testimony that he was in contact only with Feldman and that he had never been in contact with Farsh. Moreover, Adv. Winder testified that he did not receive compensation for the service provided by him, so it is clear that he had no interest in clarifying to the plaintiff her rights as a lawyer who has a financial interest.
- It was argued that the testimonies of the witnesses on behalf of the plaintiff - Grinzig and Stoll - who approached Adv. Winder in order to verify their signatures on a similar transaction - also show that the plaintiff's approach strengthens her claims that Adv. Winder does not explain anything prior to signing the mortgage documents. Since both of them testified that Adv. Winder only instructed them to sign and verified their identities.
- According to the plaintiff, she testified that she did not read the documents and relied on her husband completely, but in the same breath she testified that if she had known the meaning of the documents and the danger to her home - where her disabled son lives - it is clear that she would not have agreed to sign these documents. In light of this, the plaintiff argues that if the defendant had fulfilled her legal obligation to explain to her the documents and the risks stemming from them, she would not have signed the documents.
The plaintiff argues that in these circumstances - even though the existence of a presumption and accordingly a person who signs a document is held to have read and understood its contents - this presumption is withdrawn in the face of the breach of the increased duty of disclosure that applies to the lender, which misled the plaintiff-borrower as to the content of the document or refrained from disclosing material details to it. It was argued that such an escort is silenced from relying on the presumption of knowledge. It was argued that if this is not the case, and to the extent that critical weight is given to the fact that the plaintiff did not read the agreement, it will open a dangerous door for a non-bank lender to breach its duty of active disclosure beyond what is stated in the agreement. It was further argued that there is a balance between the breach of the plaintiff's duty of good faith that she did not read the agreement and the increased breach of the duty of good faith and the breach of the statutory duty of disclosure of the defendant's hand on the lower part and that she must bear her omissions.
- It was argued that the aforesaid applied even more strongly given that the loan money was intended specifically for the Builders and Protected Company and the defendant knew that there was no chance that the Builders and Protected Company would repay the loans. In this context, the plaintiff refers to the examination of the witnesses on behalf of the defendant, who claimed that they had conducted an examination of the reimbursement capacity of the Builders and Protectors Company, claimed that they had documentation indicating this, but they ceased to present documentation for such an examination - an omission that serves as an evidentiary presumption that acts against their version and shows that to the extent that the defendant did indeed carry out this examination, it showed that the Builders and Protectors Company had no real activity. It was argued that in these circumstances, it is only that the defendant did not conduct an examination of the reimbursement capacity of the Bonim and Protected Company and relied only on the plaintiff's residential apartment, however, it chose not to report this to the plaintiff and even to conceal from the plaintiff the financial situation of Bonim and Protected Company that it was aware of. According to the plaintiff, the defendant made cynical use of it as a "neighbor procedure" - by sending the plaintiff to the forefront of the risk for the benefit of others, when there was no real activity for builders and shelters.
- The plaintiff further argues that the loan agreement, as well as its later appendices, were signed in contravention of the provisions of the Fair Credit Law - with regard to the interest rate that can be collected. In this regard, the plaintiff specifies that it was only in retrospect that it became clear to her that out of the sum of ILS 2,500,000 specified in the loan, only ILS 1,435,000 was required for the benefit of the Builders and Protectors Company, the sum of ILS 200,000 was intended for the payment of interest in advance and the sum of ILS 865,000 was intended for the disposal of the mortgage to Bank Leumi - in accordance with the defendant's requirements and in order to ensure its rights. In this regard, the plaintiff argues that the loan agreement, as well as its appendices, are subject to the provisions of the Fair Credit Law and were concluded by mistake, deception or in breach of the defendant's duty of disclosure or in extreme bad faith, all while collecting prohibited interest and in contravention of public policy, and therefore, they are void.
- In addition, the plaintiff specifies that since, in accordance with the provisions of the Fair Credit Law and the Non-Bank Loan Arrangement Regulations (Determining an Amount for the Purpose of Section 15(b)(1) of the Law), 5767-2007 (hereinafter: the "Loan Regulations") - the application of the Law will be up to the sum of ILS 1,197,707 - the defendant artificially united the plaintiff with the other borrowers without creating a distinction between the borrowers and the various purposes of the loan, all in order to be excluded from the provisions of the law and to enable her to collect interest illegally. It was further argued that the inclusion of the plaintiff together with the Bonim and Protected Company under the guise of a single agreement, even though the plaintiff did not hold shares in the company or in an executive position therein and had no interest in it, was intended to circumvent the limitations of the debt provisions and enable the collection of prohibited interest, and in addition to that, shows support for the plaintiff's claims that her status is that of a guarantor and not a borrower.
- The plaintiff further argues that although it was stipulated in the loan agreement that in light of the amount of the loan, the applicable interest would not apply in accordance with the provisions of sections 5 and 6 of the Fair Credit Law, but, for her, as an unprofessional lender, he spoke "sign language". According to the plaintiff, in light of these provisions, the defendant charged 14% interest, while at the time of signing the agreement, the permissible interest rate in accordance with section 5 of the Fair Credit Law was only 7.9%. Moreover, it was argued that the defendant stated that the amount of interest was 14%, but in practice charged more than that, inter alia, because it charged the plaintiff, together with a tax appeal, agreed compensation, and also provided sums for the deduction of interest in advance. Moreover, according to the plaintiff, in respect of the drafting of the agreement, the defendant collected an excessive and disproportionate sum of ILS 50,000 plus a tax appeal - an amount that expresses additional prohibited interest.
- Moreover, according to the plaintiff, it became clear to her in retrospect that in accordance with the terms of the agreement, if the collateral was not provided on time, even if the loan was not provided, the date of signing the agreement would be regarded as the date of granting the loan with regard to the payment of interest. It was argued that this condition constitutes a discriminatory condition in a standard contract that contradicts the provisions of the law.
- According to the plaintiff, in the circumstances described - the court must adjust the interest rates in accordance with the provisions of section 9 of the Fair Credit Law.
- Alternatively, the plaintiff claims that the defendant was negligent towards her when she made a loan in her name that was not intended for her but for a company that the defendant knew was deprived of any business activity or the ability to repay the money. It was argued that the defendant was further negligent when she continued and made repeated loans, even though it was clear to her that the funds were intended for the return of interest for her and not for real business purposes.
- It was argued that the aforesaid is even more severe since in order to ensure the repayment of the loans, the residential apartment was mortgaged jointly owned by the plaintiff and her husband, which serves as a private hospital for the plaintiff's 10-year-old son, who is 100% disabled.
- In addition, it was argued that the provision of the loan for the purpose of covering the mortgage to Bank Leumi was done in bad faith and without economic logic, while the defendant concealed from the plaintiff the reason for the need to cover the mortgage and at interest terms that were much worse than those of the mortgage, and thus the defendant caused the plaintiff damages that the plaintiff should be allowed to offset. In this regard, the plaintiff claimed that the loan refinancing did not benefit her - as it was presented to her by misleading her, but rather that it increased the bank's interest rates, since the defendant charged an interest rate of 14% compared to an average interest rate of 6.75% charged by the bank. All of this, as supported by the plaintiff's claim in the opinion submitted by her.
- The plaintiff further argues that given that the loan was made subject to a transaction permit, since there was no transaction and the funds were intended for rolling over loans and paying interest to the defendant, or since the transaction did not generate profits, the plaintiff is exempt from repaying the funds. With regard to this, and with regard to the meaning of "heter al-saka", the plaintiff refers to the ruling of the Supreme Court in Civil Appeal Authority 8896/03 Yitzhak Wallach v. Amiran C.T.L. Finance and Investments in a Tax Appeal (December 28, 2004) (hereinafter: "the Wallach case"), where the Supreme Court clarified that a business permitis a way of resolving the prohibition that exists in religious law on taking interest. This is because the permit of the businessA equates the provision of the loan with the nature of a partnership, with the borrower obligated to pay a percentage of his profits. Accordingly, it was argued that where there are no profits from the transaction, the borrower is exempt from paying interest. With regard to the significance of the heter saka in the case at hand, the plaintiff attached the affidavit of Rabbi Bronfman, who expressed his opinion that after reviewing the loan agreements, the halakhic significance of the heter saka is that since the transaction was not profitable, the plaintiff must pay the loan principal in the sum of ILS 4,170,000 at most, less the amounts paid. With regard to this, the plaintiff refers to the defendant's declaration and accordingly the scope of the payments made by the borrowers amounted to ILS 1,954,497, and that, therefore, it was argued that at most the borrowers must pay a sum of ILS 2,215,503. According to the plaintiff, Rabbi Bronfman appeared for the evidentiary hearing, but the defendant refused to question him, claiming that his affidavit constituted an opinion that was not lawfully prepared and therefore inadmissible. According to the plaintiff, this argument of the defendant should be rejected since, in accordance with the legal rule, when a party chooses not to take advantage of his right to cross-examine a declarant or witness, his omission indicates that the written testimony remained unrefuted and therefore it should be adopted. It was further argued that as a rule, a formal defect in the opinion or a non-conformity with the provisions of the Evidence Ordinance will not impair its admissibility, except in exceptional cases, and that in any event, the court is authorized to order a party to correct formal defects in the opinion - such as by way of a warning investigation. It was argued that a procedural objection according to which the opinion was not lawfully drafted, which was not backed up by cross-examination, does not negate the admissibility of the opinion. The plaintiff further argues that the presumption of adoption of the testimony by virtue of the case law, due to the failure to interrogate the declarant, outweighs a later attempt to claim a formal defect. In light of this, it was argued that Rabbi Bronfman's opinion on this matter should be accepted.
- The plaintiff further argued that the defendant's argument that the "transaction permit" clause in the agreement should not be validated should be rejected. In this regard, it was argued that from the testimonies it appears that Feldman asked to add the clause to the agreement and the defendant, for her part, agreed to add the clause. In this regard, the witnesses on behalf of the defendant testified that they agreed to the addition of the clause, even though they did not understand its meaning - and since they believed that the addition was a clause that was added for halakhic and non-commercial reasons, as well as the determination that in the event of a contradiction between the provisions of this clause and the provisions of the agreement, the provisions of the agreement will prevail - in any case this clause is emptied of its content. According to the plaintiff, the defendant's arguments - according to which in light of the limitations in the section should not be given validity - should be rejected for a number of reasons: First, since there is no dispute that the clause was added at Feldman's request and in order to avoid the prohibition of interest. With regard to this, it was argued that since the defendant admitted that this was the purpose of the section, insofar as she believed that it had no validity, she misled the borrowers, and at least they were wrong, since they believed that it was a valid clause. It was argued that in any event, this is a claim of bad faith, since there is a presumption that a party to the agreement does not insert a clause into the agreement that he believes has no meaning, and to the extent that he did so deliberately and according to which the clause would not be validated, he acted in bad faith. It was further argued that support for the plaintiff's claims that the parties had an intention to give binding force to this clause can be found in the deletion of text on this clause that includes the words: "It is clarified for the purpose of this clause that this clause was added to the agreement at the borrower's request for halachic reasons only and not for commercial reasons, and the provisions of this clause do not bite or damage or diminish or harm or reduce the borrower's obligations towards the lender" - deletion next to which the defendant added her signature. According to the plaintiff, the defendant's witnesses' versions regarding the deletion were incoherent. Initially, it was claimed that Feldman carried out the deletion, but the witness on behalf of the defendant did not know how to explain why the defendant's signature appears next to the deletion. It was further argued that in the agreement dated March 1, 2021, the defendant's signature did not appear next to the deletion, and therefore, the defendant did not agree to the deletion. The problem is that this argument of the defendant is in contradiction to the fact that the defendant was the one who presented this agreement, which includes deletion - i.e., expressed its consent to what is stated therein. It was further argued that in any event, the defendant's entire version regarding the deletion and its meaning was absent from the defendant's affidavits.
- In addition, the plaintiff argues in this regard that there is no substance to the defendant's argument that the clause should not be given effect since it expressly states that in the event of a contradiction between the provisions of the clause and the terms of the agreement, the terms of the agreement will prevail. With regard to this, it was first argued that in any event, the Transaction Permit clause does not contradict a provision of the Agreement, since the interest payments were determined in the case of the accumulation of profits, and the case in which the transaction permit was directed was intended to prevent the payment of interest in the event of a financial loss - as happened here. It was further argued that in any event, insofar as there is indeed a contradiction that requires interpretation, the agreement should be interpreted to the detriment of the defendant, who drafted it, and finally it was argued that the defendant's witnesses' argument that they did not understand the clause should not be accepted in this regard - given that these are experienced lawyers, who drafted the agreement with their own hands, and therefore it is inconceivable to listen to their argument.
- Alternatively, the plaintiff claims that since she did not receive money in her pocket, she is exempt from repaying the loan amounts, except for sums that will be proven to have been transferred to her account or for her needs. It was further argued with regard to the loan amounts given for the purpose of closing the mortgage, that the sums that were paid as interest in the sum of approximately ILS 2,600,000 constitute the restitution of these suMs. Alternatively, it was claimed that the plaintiff is a protected tenant, since the defendant did not actively explain to her her obligations according to the mortgage deeds signed by her, but chose to refer her to Adv. Yona Winder, who did not clarify to her the meaning of the rights she was required to waive.
- In light of all the above, it was argued that the law of the loan agreement and its appendices, as well as the mortgage deeds signed by the plaintiff, are void. As a result, it was argued that the mortgage that was registered for the plaintiff's rights in the apartment should be ordered to be erased in favor of the defendant. Alternatively, the court was asked to order that the plaintiff is a protected tenant of the apartment, with all that this entails, in accordance with the law.
the defendant's claims;
- According to the defendant, the plaintiff's claims and her claim should be dismissed outright and the plaintiff should be charged with realistic legal expenses, which also reflect the financial damage resulting from the plaintiff's taking of the lawsuit, as well as the withdrawal of the proceeding, all while the plaintiff continues to live in the apartment that is the subject of the hearing and does not pay anything to the defendant.
- On the merits, the defendant emphasizes that the claim revolved only about the plaintiff's rights in the apartment - i.e., only about half of the rights in this apartment. This is despite the fact that the collateral under the loan agreement also includes apartment number 5, which is held by Goldberg. According to the defendant, the plaintiff's claims in the framework of the present lawsuit - regarding lack of involvement, lack of knowledge, signing without clarification, etc. - stand in contradiction to the position taken by the plaintiff in the legal proceeding in the Goldberg case, in which - although there is no dispute that not even the plaintiff's signature on any document granting rights to Goldberg was presented - the plaintiff claimed, while showing proficiency - that Goldberg did indeed purchase the apartment from Feldman and that the transaction with Goldberg should be validated. It was argued that the plaintiff's illogical conduct also contradicts the fact that the building in which the mortgaged apartments are located is a building to which - as part of the TAMA 38 project, which was carried out by Feldman himself as a contractor - a total of five more apartments were added, three of which were sold by the plaintiff and her husband. In other words, the plaintiff herself signed sales agreements for three apartments and all the documents related to these agreements - requests for the registration of warning notes, mortgage deeds, and the like. To be precise, the defendant refers to the plaintiff's cross-examination, in which she did not remember that she had signed documents related to the sale of the apartments, but she claimed that this was illogical testimony, since it was a sale of apartments to people who had been the plaintiff's neighbors for years.
Moreover, the defendant points out that contrary to her version of the signatures that are the subject of discussion here, the plaintiff remembered in detail, in her first interrogation in this proceeding (which took place on June 26, 2023 as part of her application for an injunction) the details of her signature on the mortgage to Bank Leumi - including that she went to the branch in Jerusalem, spoke with the bank, the circumstances of her signature and the explanations given to her. It was argued that on the other hand, in her cross-examination on May 22, 2025, in the main proceeding, the plaintiff suddenly forgot the details of this loan and finally only confirmed that she had indeed traveled to a branch in Jerusalem at least once in order to take the loan. Regarding the mortgage to Bank Leumi, when the plaintiff was asked what would have happened if she had not met the mortgage repayment, she denied the bank's right to evict her from her apartment and claimed that only if she had sold the apartment should she have returned the balance of the mortgage, and that until then only interest would have been added to the debt.