It should be added that in the framework of the loan agreement, both a loan intended for the needs of the plaintiff and her husband (including for the purpose of covering the mortgage to Bank Leumi) and a loan for the needs of the Builders and Protectors Company were consolidated. However, first of all, given that the defendant requested that the couple's apartment be used as collateral for the loan, and yes, the Goldberg apartment and these were mortgaged to Bank Leumi - prima facie there was no choice but to cover the loan to Bank Leumi for the purpose of entering into this transaction, and at least - I do not believe that the demand that the collateral be "free" from additional liens, is illegitimate. In addition, as detailed in paragraph 18 above, the defendant showed that she transferred the sum of ILS 2,585,000 directly to the account of the plaintiff and her husband out of the funds that they borrowed - while the plaintiff, for her part, did not present any evidence showing that these funds or part of them were indeed transferred to the Bonim and Mongolim Company. In light of this, the plaintiff did not prove that the lion's share of the funds did not reach the couple's use. I will note that according to the plaintiff, the reason for which the defendant sought to combine the two loans was her desire to evade the interest limit set by the Fair Credit Law. However, this limitation applies only where the amount of the loan is less than ILS 1,197,707 (as claimed by the plaintiff herself - see what is stated in paragraph 40 above of the judgment), when the amount of the loans that were transferred directly to the couple's account is more than double this amount.
Moreover, part of the elements of the tort of negligence is proof of damage. In this regard, the plaintiff claimed damages as a result of the difference between the interest rate that she was required to pay for the mortgage to Bank Leumi and the interest rate in accordance with the loan in question. But first, as has already been detailed, the plaintiff was aware of these differences and agreed to this. Without derogating from the aforesaid - in support of her claim regarding the interest rate that is the subject of Bank Leumi's mortgage - the plaintiff presented an opinion on behalf of accountant Moti Rosenfeld. However, it became clear that the latter had not seen the loan documents to Bank Leumi (and these were not even presented to the court) and his starting point was that the amount of the mortgage to Bank Leumi was less than ILS 1 million. The problem is that this point of departure was negated both by the testimony of the plaintiff's husband, who testified, on page 118, that the loan was from the outset in the sum of more than ILS 1,200,000, and in the registration in the Land Registry which shows that the loan was in the sum of ILS 2 million.