From a review of the minutes of the hearing there (Appendix 9 to the claim), defendant 1 did not state that he intended only to notify a third party, and I was under the impression that the pre-trial meeting dealt with the claim as a whole, including the notice to the third party, but not exclusively. The fact that a guarantee was given to secure the expenses of the third party does not negate the things that were said and the representation they created, and certainly does not negate the purpose of the declaration of solvency that the defendants signed, out of awareness of the existence of the plaintiff's claim in the previous proceeding.
To this, I will add that defendant 1 already knew at the time of the aforementioned hearing that the company was in the final stages of the liquidation proceeding, since about two months earlier he had submitted a final report according to which the company had repaid all of its obligations, and it is presumed that if defendant 1 had believed that the defendants had no responsibility to repay the plaintiff's debt, by virtue of their signature on the affidavit, he would have stated this explicitly, and would not have allowed the continuation of the previous proceeding. Knowing that if the company is liable, the plaintiff will have no one to repay (and we will recall that defendant 1 was an attorney with all that derives and implications therefrom). And the fact is that about a month after the "liquidation" of the company on June 27, 2019, the company even held an evidentiary hearing in the previous proceeding (Exhibit A/3).
- From all of the above, I am persuaded that the defendants filed an incorrect affidavit of solvency, when they knew of the existence of a possible debt to the plaintiff and that the plaintiff relied on this affidavit and did not take any further actions, and thus the defendants breached the duty of care imposed on them, as officers, towards the plaintiff, in addition to the breach of the duty of care and the duty of fiduciary duty imposed on them by law.
Defendant 3, who claimed in his cross-examination that he had signed the affidavit of solvency, like many things he had signed, even though he had not actually read them (par. of November 25, 2024, pp. 55, 14-16, 27), and that he did not ask and did not know whether there was a debt (par. of November 25, 2024, p. 56, par. 25), is not exempt from liability and should have acted as a reasonable officer and examined the matter as required.