Civil Appeal 8611/06 Bank Hapoalim Ltd. v. Michal Martin - part 9

The witness continues:

1. I'm telling you that in 2000, between May and September 2000, you were at Union Bank and you know that Union Bank canceled your mortgage on the property and registered a mortgage on the house in Ra'anana and then you signed the mortgage of the house in Ra'anana, and you can also say the block and plot of the house, what is your response?
2. Can you show me a document that I signed at Union Bank? I don't remember being at Union Bank.
3. Don't you remember that you signed a mortgage cancellation at Union Bank?
4. I don't remember. I don't remember that they canceled my mortgage from Union Bank.  Why haven't you shown it to me until now?
5. Have you seen money that came from abroad from the sale of properties in the United States?
6. Until a few months ago, I didn't see him. About two months ago, my husband showed a document to the arbitrator that the money that should have been transferred to Bank Hapoalim had reached Bank Hapoalim in his personal account.  I didn't know about it until now.  I saw the document recently.

Adv. Welner: I present the document, about which the witness testified, to Adv. Slonim and to the court.

The document is submitted and marked P/2" (pp.  7-8 of the transcript of the hearing in the District Court).

46. P/2 on which the Respondent relies apparently attests to a bank transfer of a sum of $130,000 from a U.S. bank account (FIRST UNION NATIONAL BANK) to the bank account of the The husband at Bank Hapoalim in Israel.  This is not a formal document signed by an employee of an American bank.  In any event, nothing can be deduced from this document regarding the repayment of the mortgage At Union Bank.  As to the respondent's claim that the bank branch manager even "admitted it", it is not clear on what the respondent bases this claim.  The Respondent refers to the following from the testimony of the branch manager in the District Court:

"Q.  I refer you to P/2.  Confirm that according to this document, in September 1998, the amount stated in account 8160 was received?

1. I can't remember. This is a document that is predicted to be a transfer.  I need to see a document of Bank Hapoalim that received such and such a sum" (p.  17 of the minutes of the hearing in the District Court).

These statements of the branch manager do not indicate that "the respondent's version that the debt at Union Bank was paid from the sale of assets abroad turned out to be correct"; Or that "the bank's claims regarding the loan taken at Union Bank are mere claims that have not been proven." A/2 may thus testify that funds were transferred from an American bank account to the husband's bank account in Israel, which was with the appellant, and thus the debt was reduced.  This does not constitute proof that the mortgage at Union Bank was repaid through the said transfer of funds.

47. The evidence shows that on September 21, 2000, the bank sent a letter to Union Bank requesting Union Bank's consent to register a mortgage of the second degree, without limitation in amount, to secure the debts and obligations of the mortgages (the respondent and her husband) towards the bank, with an undertaking that "upon registration of the mortgage as aforesaid, we will transfer to the credit of the account of H.H. Martin Yehuda and Michal ...  A sum of not less than US$119,000 as shekels.  And upon the transfer of payment, you will cancel the mortgage registered in your favor." Union Bank itself sent letters to Bank Hapoalim confirming what was stated in the quoted letter.  Subsequently, Union Bank also addressed a letter to the Land Registrar in which it declared its consent to register a second-degree mortgage in favor of the bank, in accordance with the agreement reached between the banks.  The bank's exhibits were also accompanied by evidence attesting to the transfer of the said funds to Union Bank.  Moreover, on the letter of undertaking for the repayment of the loan in the amount of ILS 585,000 dated October 10, 2000, in the section "Purpose of the Loan", it is stated that "the fund was given for the purpose: to cover a mortgage at Union Bank + debts".  The conclusion is that it has been positively proven that the loan in the amount of ILS 585,000 was mostly used to repay the mortgage at Union Bank.  On the other hand, the Respondent's claim regarding funds that allegedly came from the United States and were used to repay the obligation to Union Bank was not proven anywhere, and it is not for nothing that it was not given any expression in the District Court's judgment.
48. From the determination of the facts, in my opinion, the road to the legal conclusion is short. There is no fairness and no justification for a certain person to refrain from repaying his debt to an anonymous person, be it a private person or a bank, and will even merit to keep the property that was pledged in favor of an anonymous person in order to secure this debt.  A proper economy cannot function when debts are not paid and liens cannot be realized (see: Plateau Shinar, supra, on the limitations to the duty of trust at pp.  105-111).  In the circumstances of the present case, I am of the opinion that the result whereby the respondent is exempt from paying the mortgage that existed on the real estate property, in favor of Union Bank, without this impairing its enjoyment of the property, is unfair and should not be agreed with.  As may be recalled, the mortgage to Union Bank, at the time the money was transferred from the bank to it, was $119,000, equivalent in shekels at the time.  The loan from the bank dated October 10, 2000 was ILS 585,000.  The District Court did not determine how much of the sum of ILS 585,000 was transferred to Union Bank, but rather ruled that this loan "Rifle It was transferred to Union Bank." However, as emerged from the correspondence between the banks, Union Bank's agreement to register the mortgage in favor of the appellant, without limitation in the amount, was conditional on the repayment of the mortgage that was registered with Union Bank - in the amount of $119,000.  Attached to the bank's exhibits was a document attesting to the transfer of ILS 484,094.5, on the same day that the ILS 585,000 loan was taken.  This figure is consistent with all the data presented, which indicate that the money was transferred to Union Bank to repay the mortgage that was all there.  In these circumstances, it must be determined that the mortgage deed that is the subject of the appeal will be honored by the respondent up to the sum of $119,000, as values in shekels at the time the payment was transferred to Union Bank, plus interest and linkage from October 4, 2000 in accordance with the terms of the accountInvestigation of the husband.
49. And from here - to the legal side. In my opinion, the respondent should not be exempted from that part of the mortgage, which is the amount that was transferred to Union Bank for the repayment of a previous mortgage, of which the respondent knew.  Ignoring the regime The Mortgage Klil This means that the bank will not be able to repay the debt to it that was created due to the repayment of a debt that the couple had at Union Bank.  This result is equivalent to the enrichment of the respondent and not to the trial of the respondent at the bank's expense, since the respondent is exempt from repayment of the mortgage on the one hand, and the land is not encumbered to the appellant on the other.  When Reuven pays Leah Shimon's debt, Shimon's failure to repay the debt to Reuven is enrichment and not in law, which requires that Reuven be returned the money (for the issue of repaying a debt owed by others, see Daniel).  Friedman Laws of Enrichment And not in a sentence Volume 1, 260-304 (2nd ed., 1998).  In addition, according to the aforesaid In the section 14 According to the Pledge Law, the bank is entitled to return to the respondent and her husband and repay the said debt from them: