On December 18, 2018, the following sums were transferred to an account at Bank Leumi, Branch 855, which is a joint account of the plaintiff and her husband - Feldman, in three separate transfers: ILS 150,000, ILS 200,000 and ILS 150,000, and in antitrust ILS 500,000.
In addition, on January 16, 2019, the sum of ILS 1,020,000 was transferred to an account at Bank 20, Branch 468 - also in the name of the plaintiff and her husband - Feldman.
In other words, there is no dispute that in total, the sum of ILS 2,585,000 was transferred by the defendant to cover the mortgage of the plaintiff and her husband, as well as to the joint accounts of the plaintiff and her husband.
- Already at this stage, I will note that the plaintiff does not deny that payments were made in accordance with the loan agreement and its appendices, however, according to her, the funds were not transferred to her account, or were not intended for her, but for the business of her husband - Feldman - claims that will be clarified and detailed below. The plaintiff further does not dispute that the loan agreement, its appendices, and the payment arrangements that are later therein - all as detailed above - were breached. At the same time, the plaintiff claims that in respect of interest deriving from the agreements, a sum of ILS 1,954,497 was paid (I will note that in the statement of claim the plaintiff claimed that a sum of ILS 2,600,000 was paid, however, in her summaries the plaintiff claimed payment of the sum of ILS 1,954,497 - as claimed by the defendant - see paragraph 32 of the summaries). At the same time, I will note that according to the defendant, this sum was paid with the addition of VAT). With regard to this amount, it will be clarified at this point that according to the defendant's claim, the loan repayments were made - at Feldman's request - only by the Ganim and Protected Company, against tax invoices issued by the defendant. This last claim of the defendant was also not denied by the plaintiff.
- In light of the breach of the obligation to return the funds to the defendant, in December 2021, the defendant opened a writ of execution file - No. 501920-12-21 for the purpose of realizing the collateral, including the realization of the mortgage on the two apartments - Apartment 5 (held by Goldberg) and Apartment 10 - which is the apartment that is the subject of the hearing, in which the plaintiff, her husband and her children live (hereinafter: the "Execution File"). As part of the execution case, the defendant's attorney was appointed as receivers for the purpose of selling the apartments.
- On June 22, 2022, the plaintiff filed a power of attorney in the Writ of Execution file (page 182 of the statement of defense).
- On May 4, 2023, a meeting was held before the Head of the Execution Office, the Honorable Registrar Ohad Asher. Only the plaintiff's husband attended the meeting , the plaintiff did not attend. At the end of the hearing, the Honorable Head of the Execution Office ruled that: "The debtors took a loan from the winner in the amount of millions of shekels and in order to ensure the repayment of the loan, they would mortgage their residential apartment." The head of the Execution Office rejected the argument that the mortgage should be prevented from being realized due to the disabled child's residence in the apartment, since "when they took out the loan, they were already parents of a disabled child, meaning that they knew that there was a possibility that if the debt to the beneficiary was not repaid, they would be required to leave the apartment that would be used to repay the debt."
In light of this, the Honorable Head of the Execution Office ordered the evacuation of the apartment and issued a temporary housing order for 18 months at the rate of ILS 6,500 and in the case of business restrictions ILS 117,000, which will be paid to the debtors upon the evacuation of the property.
- Subsequently, on May 24, 2023, the plaintiff sent the defendant a notice of cancellation of the loan agreements and the mortgage notes. In this statement, she detailed that after receiving advice from Legal Aid, she realized that the defendant had misled her and oppressed her. Thus, it was argued that the agreements that were entered into were agreed upon behind the plaintiff's back and in coordination with her husband and without explaining anything to her. It was also claimed that the defendant took prohibited interest while exchanging a mortgage at twice the interest rate. The plaintiff further claimed that she had signed a waiver of protected tenancy and an alternative apartment, all when she had a seriously ill son and that the defendant should have known that the plaintiff could not waive these rights for funds that did not go to her. The plaintiff further claimed that the company to which the funds were transferred had no ability to return them, but only from "incarnations". In light of all this conduct of the defendant, the plaintiff announced that the loan agreement signed on April 23, 2017, as well as all the appendices signed over the years, as well as the mortgage deeds from April 23, 2017 and May 15, 2019, were null and void.
- At the same time, the plaintiff filed the claim before me, in which the petitioner is the main remedy to order the cancellation of the loan agreement and all the appendices that were signed subsequently thereof, as well as the cancellation of the mortgage deeds signed by the plaintiff and, accordingly, the cancellation of the registration of the mortgage on the plaintiff's rights in the apartment.
- Alongside the claim, the plaintiff filed a motion for an injunction against the realization of the apartment. Hearings were held on June 7, 2023 and June 26, 2023 before the Honorable Judge Noa Grossman, in which the plaintiff was questioned, inter alia, regarding an affidavit in support of the motion.
Subsequently, on June 29, 2023, the Honorable Justice Grossman issued a decision, in which she found that she should issue an injunction as requested, preventing the realization of the apartment, subject to the deposit of a financial guarantee in the sum of ILS 175,000 by the plaintiff. It was also determined that the expenses of the application in the amount of ILS 25,000 would be reflected in the ruling on the costs of the proceeding.