Moreover. The appellant did not raise any claim in her claim against Adv. M. Fichman before whom she signed the mortgage deed, a signature that was approved by him in the text quoted above.
According to the provisions of Regulation 16(a) of the Real Estate Regulations (Management and Registration), 5739-1989, before a lawyer approves a signature from a mortgage made before him, he is obligated to explain to the mortgagee the nature of the transaction he is about to sign and the legal consequences deriving from it.
Adv. M. Fichman did so, as appears from his confirmation on the mortgage deed in question, and the appellant did not dispute and does not dispute this.
Given this, "the bank is entitled to assume upon receipt of the mortgage deed signed by the lawyer that these explanations were indeed given by it" (Justice A. GruILS inCivil Appeal 11519/04 Levkovich v. Bank Hapoalim in Tax Appeal ([published in Nevo], 7 July 2005)).
The appellant's argument that despite this, the bank must re-give its explanations to the mortgagee, after they were lawfully given by the lawyer before whom the note was signed, has no substance."
In a parenthetical article, I will note that the plaintiff in the present case argued that the Supreme Court's rulings should be distinguished from the case before us, since in the Gilman case the appellant raised claims against her attorney, whereas in the case at hand, the plaintiff raised such claims against attorney Winder.
- similar to the rulings of the Supreme Court in the Martin case (as well as the indications deriving from them, as I detailed above); in the Gilman case, and in the Levkowitz case) It was determined, as to the significance of the signature of the certificate by a lawyer, as follows:
"According to accepted law, there is a presumption that a person's signature on a document is in fact evidence that he gave his consent to the content of the document, after he had read and understood its essence (Civil Appeal 467/64 Switzerland v. Sandor, IsrSC 19(2) 113, 117). This is certainly true when we are dealing with such essential documents, such as a mortgage deed (see, in this regard, Civil Appeal 1548/96 Union Bank of Israel v. Lupo, IsrSC 55(2) 559; Civil Appeal 6645/00 Arad v. Eban, IsrSC 56(5) 365, 375-376). In her interrogation, the Applicant admitted to an affidavit that she was aware that she had signed forms for pledging her rights in the residential apartment. This, while she wrote in her affidavit that she understood that she was signing a guarantee for loans taken by her spouse. However, she claimed that the significance of signing the documents and the consequences that derive from it were not sufficiently clarified to her. In this regard, it has already been ruled that signing a mortgage document blindly relying on the advice of an attorney or a spouse does not in itself constitute a sufficient reason to determine that the agreement is invalid (Civil Appeal 1548/96, supra). Moreover, according to the provisions of Regulation 16(a) of the Real Estate Regulations (Management and Registration), 5739-1969, before the mortgage is approved, the lawyer is obligated to explain to the couple the nature of the transaction they are about to execute and the legal consequences deriving from it. The bank may assume upon receipt of the mortgage deed signed by an attorney that these explanations were indeed given to the couple. Moreover, since the applicant signed the mortgage deed in front of a lawyer who did not represent the bank or at the bank's branch, it cannot even be claimed that she was misled by the bank at the time of signing. In addition, I am of the opinion that the Applicant has not been able to refute the ruling of the trial court regarding the lack of cleanliness involved in the application." [My emphases L.B.].
- To complete the picture, I will add and note that Civil Appeal Authority 356/12 Money Israel in the Tax Appeal v. Sabiha Ida (March 11, 2012), the Supreme Court reached a different result, however, while emphasizing the special circumstances in that case. Thus, in the same matter, the Supreme Court ruled that a loan agreement against which a pledge was taken against the borrower's apartment should not be validated - in the same case we were dealing with an elderly borrower who is illiterate, who borrowed from a relative who is the main beneficiary of the loan, a fact that the court found necessary: "To turn on a 'red light' for the lender and oblige him to try to reach a particularly high level of certainty regarding the discretion and consent of the person who mortgages his apartment. before approving the loan" (paragraph 11 of the judgment). In the same matter, the Supreme Court further emphasized the factual findings as determined by both the Magistrate's Court and the District Court, and accordingly the lender was aware of the borrower's limitations, the inherent conflict of interest between it and the other borrower, and the fact that the borrower did not understand the significance of the documents it signed. In view of this, it was determined that the presumption that the respondent's signature on the loan documents testified that she had read and understood them was contradicted. It was further held that in these circumstances representation through an attorney was not sufficient, inter alia, since it was proven that the loan agreement was not in full before the lawyer at all (paragraph 4 of the judgment).
For the sake of completeness, I will note that the plaintiff referred - as evidence to support her argument that the duty of explanation that which applies to the lender is a personal duty, which the lender cannot convey to another, and in general, cannot rely on the approval of a lawyer in order to discharge the duty of explanation that applies to him to the ruling of the District Court in Opening Motion (Tel Aviv District) 744-08 Natan Warsaw v. Mizrahi Bank (June 20, 2010). However, after examining the judgment on that matter, I found that it did not contain what the plaintiff wishes to read. Thus and first of all, in the same matter, the lawyer had the applicants sign a power of attorney that allows the registration of the pledge. That is, there was no mention of the lawyer who signed the borrower's documents on the transaction documents and confirmed that he had explained to her the significance and risks arising from the transaction. Moreover, the court in the same matter even emphasized that in this it differed from the Supreme Court's ruling in the Gilman case, where the mortgage deed was signed before a notary, as well as the Supreme Court's rulings in the Levkowitz case, where the circumstances were similar to the Gilman case. (See starting on page 9 of the judgment). In the examination of the above necessity, I will add and emphasize that in any case this is a determination by the District Court, with what this entails in terms of its binding validity towards this court.
- The obligations that were determined with respect to banking corporations were applied - and even more strongly - with respect to non-bank lenders. In this context, and even relevant to our case, are the Supreme Court's rulings in the case of Mr. Money v. Reiss (Civil Appeal 9136/02 Money Israel in Tax Appeal v. Sara Reiss, 58(3) 934 (hereinafter: "the Mr. Money case"). In the same matter, the discussion revolved around a loan that was given by a non-bank lender, in which the respondent signed that her apartment would serve as collateral for its restoration. In that matter, there was no dispute as to the respondent's understanding that she signed that her apartment would serve as collateral for the repayment of the loan, and therefore, it was determined that there was no ground for cancelling the agreement with regard to the mortgage of the apartment itself. At the same time, the question was examined as to whether it was explained to the Respondent as a waiver of temporary housing and its rights under the Tenant Protection Laws if and when the security is realized, and whether, in the absence of such an explanation, the Respondent has grounds for cancelling the sections relating to the waiver of these protections due to an error by virtue of the provisions of Section 14 of the Contracts Law (General Part), 5733-1973 (hereinafter: the "Contracts Law"). As part of the discussion of these questions, the Supreme Court examined the scope of the protection granted in accordance with the provisions of section 83 of the Writ of Execution Law. With regard to this defense, the Supreme Court (by the Honorable Justice Rubinstein) began by detailing that the Writ of Execution Law seeks to realize and balance two purposes: one is to create a quick and efficient mechanism for debt collection - based on the interest of the winner and his property, as well as the public interest in respecting the law, and the second is to prevent the economic collapse of debtors and turn them into a burden on the society that expresses the debtor's right to dignity and liberty. It was held that this duality, which is intertwined with the entire Writ of Execution Law, is also reflected in the provision of section 38 of the same law, which establishes the protection of the residence and states:
")a) If the seized land serves, in whole or in part, as the debtor's residence, the head of the Execution Office may order the sale of the land and the eviction of the debtor and his family members living with him from the land, provided that it is first proven, to his satisfaction, that the debtor and his family living with him will have a reasonable place of residence, or that a temporary arrangement has been made available to them.