The Appellant's Arguments
- The appellant has many arguments against the judgment of the District Court. According to the appellant's main complaint, the court ignored the fact that the mortgage that it gave to the respondent and her husband was used for the purpose of removing the mortgage that was lying on the property in favor of Union Bank, after Union Bank began to marry the couple in order to repay their debt to it. According to the appellant, the result of the judgment is that the respondent enjoys the disposal of a mortgage that she had placed on her house (in favor of Union Bank), without having paid any consideration for it, and at the same time the respondent was exempted from the mortgage that she created for the appellant. The appellant opens with a number of arguments regarding the validity of the mortgage deed from a legal point of view; Afterwards, the appellant raises arguments regarding factual findings determined by the Magistrate's Court, which according to him, the District Court ignored or drew erroneous logical conclusions from them; The appellant also argues against the respondent's lack of good faith; Finally, the appellant raises a number of alternative legal doctrines that lead, according to him, to the same result - accepting the appeal and legitimizing the mortgage deed.
- As to the validity of the mortgage deed, the appellant argues that the District Court erred in not attributing to the mortgage deed signed by the respondent the simple and explicit meaning of what is written therein, according to which the respondent mortgages all of its rights in the property in favor of the appellant, in order to secure all the sums that are due or will reach the appellant from the respondent and/or her husband. It was noted that the respondent had already signed a mortgage in the past, in favor of Union Bank, so this is a familiar proceeding to her. In particular, the appellant emphasizes that the mortgage deed was signed in the presence of Adv. Tulchinsky, who explained to the respondent everything that required an explanation before she signed the mortgage deed and even declared this at the time of signing it before him:
"I testify that on October 5, 2000, he appeared before the aforementioned mortgage [the respondent and her husband - M.N.], and after I identified him and explained to him the nature of the transaction that he was about to execute and the legal consequences deriving from it, and after I was convinced that the matter had been properly understood by him, he signed of his own free will... I certify the signature of this deed in accordance with the provisions of Regulation 16(a) ofthe Real Estate Regulations (Management and Registration), 5730-1969."