MICHAEL AMADI v. CHINEDUM OLI and COLT INVESTMENTS & FINANCIAL GROUP LLC

Introduction

Plaintiff Michael Amadi, a Georgia resident, borrowed $20,000 from his close friend and occasional business associate, defendant Chinedum Oli (also a Georgia resident), through Mr. Oli's sole proprietorship COLI Investments & Financial Group LLC ("COLI"). That much is undisputed. What is disputed is whether Mr. Amadi signed a promissory note and mortgage for that debt, copies of which are currently on record at the Suffolk County Registry of Deeds. [Note 1]

The note and mortgage, which relate to and encumber an investment condominium Mr. Amadi owns in Boston, [Note 2] appear on their face to have been signed by Mr. Amadi and Mr. Oli (the note by both Amadi and Oli; the mortgage by Amadi alone), and those signatures further appear to have been notarized on both documents by their mutual friend Francine Uwababyeyi (a Georgia notary). The parties agree that no different documents exist that relate to the loan (i.e., a note, mortgage or other writing reflecting different terms). Mr. Amadi contends, however, that his signatures on both the note and mortgage were forged by Mr. Oli. For her part, by deposition admitted into evidence at trial, Ms. Uwababyeyi claims she never witnessed Mr. Amadi signing either the note or the mortgage and that the signature notarizing the mortgage is not hers. [Note 3] Mr. Oli is adamant, however, that Mr. Amadi agreed to and signed both documents and that Ms. Uwababyeyi notarized them. Ms. Uwababyeyi admits that the notarization stamp and signature on the note are hers, but claims she did not see Mr. Amadi's signature on that note (only Mr. Obi's) at the time she notarized it. She concedes that Mr. Amadi's signature may have been on the note at the time of her notarization, but is certain he did not sign it in her presence, only Mr. Oli. Mr. Oli says that both he and Mr. Amadi were present before her and signed.

Reduced to essentials, Mr. Amadi's case can thus be summarized as follows: there are three forged signatures and a forged notarial stamp on the documents in question - his signature on the note, his signature on the mortgage, Ms. Uwababyeyi's signature on the mortgage, and Ms. Uwababeyi's notarial stamp on the mortgage. Mr. Amadi claims these forgeries, if that is what they are, are each the work of Mr. Oli and were done by computer. He thus brought this action to have the mortgage stricken from the Registry and the encumbrance on his condominium removed.

A trial was held before me, jury-waived. With the exception of the testimony of the Registry clerk, the limited testimony of Mr. Amadi's expert Richard Fraser, [Note 4] and the testimony of attorney Ezenwa Nwogu, [Note 5] I do not believe that any of the witnesses were entirely truthful - not Mr. Amadi, not Mr. Oli, and not Ms. Uwababyeyi - leaving me to sort out what was credible in their testimony, what was not, and the proper inferences to be drawn from the credible evidence. Based on the testimony and exhibits admitted into evidence at trial, my observations of the witnesses, my assessment of the credibility, weight, and inferences to be drawn from the evidence in light of those observations, and as more fully set forth below, I find and rule that Mr. Oli did not forge the signature of Mr. Amadi on either the note or the mortgage, that the signatures on the originals of those documents were placed there by Mr. Amadi, and that Mr. Amadi is thereby bound by the terms and conditions of those documents. [Note 6]

Facts & Analysis

Mr. Amadi and Mr. Oli met in Boston in early 2000. Mr. Amadi was a recent graduate of the University of North Carolina, Charlotte, and Mr. Oli was enrolled as an undergraduate student at Northeastern University. By 2005, both Mr. Amadi and Mr. Oli had moved to suburban Atlanta and become close friends.

In 2006, Mr. Oli formed COLI, essentially a one-man operation involved in property acquisition, renovation, and management. Mr. Amadi was engaged in similar activities and, in 2007, began asking Mr. Oli for advice on the purchase and renovation of investment properties in the Atlanta area. Mr. Oli gave him that advice, occasionally assisted Mr. Amadi in purchasing particular properties and, through COLI, would sometimes lend the money needed for renovation work. The parties agree that COLI lent Mr. Amadi $10,000 in August 2008 and another $10,000 in October 2008. [Note 7] Mr. Amadi claims to have used the money to pay for work on an Atlanta-area house he was renovating for resale; Mr. Oli claims that it was lent for renovations to Mr. Amadi's condominium unit in Boston. It is quite possible that both were discussed. In any event, both Mr. Amadi and Mr. Oli anticipated that the money would be repaid in short order. As such, no note or mortgage was signed by the parties at the time the money was lent. [Note 8] As it turned out, however, the Atlanta house did not sell and was ultimately foreclosed upon by a bank that did get a mortgage. Likewise, the Boston condominium unit has not been sold. Rather, Mr. Amadi continues to own it and rent it to tenants.

Mr. Amadi claims that the foreclosure on the Atlanta house ended his obligation to repay the money (i.e. that Mr. Oli agreed to be repaid solely from the profits, if any, resulting from the renovation and sale of the house in Atlanta). I do not find this credible. Both Mr. Amadi and Mr. Oli are bright and ambitious, but neither has amassed much in the way of income or assets. Twenty-thousand dollars is a great deal of money to Mr. Oli, and I do not believe he would have risked such a large sum on the speculative prospect of profits from the renovation and sale of an already heavily-mortgaged house, particularly without any "upside" from the sale (i.e. either significant interest on the loan or a split of the profits after repayment of the loan). Additionally, "investment loan" (emphasis added) is written on both checks. If the parties truly intended the return of Mr. Oh's money to come solely from the profits of a sale, it would simply have said investment.

In contrast, Mr. Oli claims that he and Mr. Amadi agreed that the twenty-thousand dollars would be secured by a mortgage on Mr. Amadi's Boston condominium unit. I believe this testimony. But it was only an oral agreement at that time. As previously noted, I do not believe Mr. Oli when he said he prepared a mortgage document for the Boston condominium in October 2008. In any event, it was certainly not the mortgage at issue in this case. Attorney Ezenwa Nwogu - one of the only witnesses whom I believe was entirely truthful at trial - testified that he prepared the template for that mortgage and faxed it to Mr. Oli in April 2010, some eighteen months after the last of the money (the second $10,000 check) was lent.

Mr. Oli's comfort with just an oral agreement on security for the repayment of his loan to Mr. Amadi clearly ended by the beginning of 2010, when both Mr. Amadi and Mr. Oli were running short of funds. [Note 9] The tipping point came in February when Mr. Amadi approached Mr. Oli and requested the loan of additional money, purportedly to repair the HVAC system at the Boston condominium. [Note 10] This prompted Mr. Oli to insist on putting the oral loan and mortgage agreement into writing. I find that Mr. Amadi agreed to this, both because it reflected their earlier oral agreement and to maintain the relationship with Mr. Oli in case (as seemed likely) he needed to borrow even more money from Mr. Oli in the future. To assist in the preparation of such documents, Mr. Oli contacted a Boston attorney (Bzenwa Nwogu) who had represented him in a small claims action some years before, and attorney Nwogu soon faxed him templates for a note and mortgage in mid-April. Shortly thereafter, Mr. Oli mailed attorney Nwogu the note and mortgage at issue in this case, both of which appeared to be signed and notarized, and directed him to record them. The note was for $25,000 "due and payable upon the transfer of ownership and title to the [Boston condominium] property [Unit #17 of Unit 3, 8 Douglas Park, Boston] and/or on the closing date of the sale of the property," and was attached to a $25,000 mortgage on that property with identical payment terms. Both are for the fixed amount of $25,000, rather than $20,000, to reflect the uncertain timeline of collection. [Note 11] Clearly neither Mr. Oli nor Mr. Amadi had any confidence that Mr. Amadi could raise the money needed for repayment until the Boston condominium was sold.

Attorney Nwogu took both the note and mortgage to the Suffolk County Registry of Deeds, added the Book and Page number to the property description as well as the notation that the property was part of the Davenport Commons Condominiums, and had them recorded. [Note 12] Unnoticed by either attorney Nwogu or the Registry clerks, neither the note nor the mortgage were original documents; both were photocopies.

Mr. Oli claims that both the mortgage and note were agreed to and signed by Mr. Amadi, and that Mr. Amadi's signing was witnessed and notarized by their mutual friend and notary, Ms. Uwababyeyi. [Note 13] Mr. Amadi claims that his signatures on those documents were forged by Mr. Oli, and bases that contention on essentially three things: (1) the note and mortgage presented for recording were both photocopies and neither contained "original" signatures (i.e. non-photocopied signatures); (2) his own testimony; and (3) the notary's testimony (Ms. Uwababyeyi) that he did not appear in front of her to sign the documents. I address each of these arguments in turn, as well as the reasons for my finding that Mr. Amadi's signatures were not forged.

I start with Mr. Amadi's contention that the recorded note and mortgage do not bear "original" signatures. Agreed. Mr. Amadi's handwriting expert, Richard Fraser, was convincing on that point, discussing during trial the different characteristics (revealed under magnification) between "original" signatures and those that are photocopies. The "originals" may well be Exhibits 25 and 26, both of which were excluded from evidence because of late production. [Note 14] Regardless of whether they bear original signatures (a matter I need not, do not and, because they were excluded from evidence, cannot decide), I am still persuaded, for the reasons set forth below, that Mr. Amadi agreed to and signed the note and mortgage, that they therefore reflect a valid, enforceable obligation, and that Mr. Amadi's testimony to the contrary is simply not persuasive.

First, Mr. Amadi admits that he borrowed the $20,000 from Mr. Oli, and his contention that repayment was limited to the surplus proceeds, if any, from the sale of the Atlanta house is simply not credible. As previously noted, it was a loan, not an investment with potential "upside," and $20,000 is more money than Mr. Oli would risk for friendship's sake.

Second, the mortgage was a very good deal for Mr. Amadi. Mr. Amadi had no obligation to repay the $20,000 until some time, if ever, as he sold the condominium unit in Boston. This could be tomorrow, or it could be many years (even decades) in the future. The interest due, however, was fixed at $5,000 regardless of how long Mr. Amadi took to sell the unit. $5,000 seems fair consideration and compensation for such uncertainty on the part of Mr. Oli. It also makes sense why Mr. Amadi would want the mortgage on this particular property. After all, it is an investment property, not Mr. Amadi's residence or Mr. Amadi's other home in Atlanta where his father apparently lives, the encumbrance of which would be avoided by friends. [Note 15]

Third, and most importantly, the sheer logistics and scale of the forgery Mr. Amadi posits would challenge even the most skilled conspirator, and seem far beyond the reach of Mr. Oli. As Mr. Amadi's expert testified at trial, no one signs their name precisely the same way twice. Here, although recognizably from the same hand, Mr. Amadi's signature on the note is different from his signature on the mortgage, and both are different from his signatures endorsing the two $10,000 checks (as both of those "endorsing" signatures are different from each other). These subtle differences are exactly what would be expected if the signatures were genuine, and exactly the opposite of what would be expected if they were placed there via computer. The same is true of the notary's (Ms. Uwababyeyi) signature on the note and mortgagee - both recognizably hers (as she conceded at her deposition), yet each with minor differences from the other. There are even subtle differences between the notary stamps on these two documents - again, exactly what would, be expected from two different "stampings" from an ink pad, and exactly what would not be expected if they were copied by a computer program.

In short, for these to be forgeries as Mr. Amadi maintains, Mr. Oli would have needed: (1) access to two different exemplars of Mr. Amadi's signatures; [Note 16] (2) access to a different exemplar of Ms. Uwababyeyi's signature; [Note 17] (3) access to a different exemplar of Ms. Uwababyeyi's notarial stamp; [Note 18] (4) to know that minute variances inevitably occur whenever a person signs his or her name, and cognizant of these differences, transpose one Amadi signature onto the note and a slightly different "Amadi" signature onto the mortgage, as well as a slightly different "Uyababyeyi" signature and notary stamp onto the mortgage; and (5) choose exemplars for the computer-copying of these signatures that he was confident would not be identical to anything Mr. Amadi had ready access to so that his forgeries would not be exposed at trial. This would be the work of a master-forger; not Mr. Oli, whom I closely observed at trial.

Lastly, I do not find credible Mr. Amadi's contention that he first learned of the mortgage in May 2010, when he visited the Suffolk County Registry to acquire a copy of the deed to his Boston condominium unit. Registry records are posted on the web and copies of all those records, deeds included, can be directly printed from the internet. It is simply not credible that a person would travel from Atlanta to Boston for the purpose of acquiring a copy of a document accessibly electronically, and certainly not a person in dire financial straits like Mr. Amadi. [Note 19] Rather, I find that it is far more likely that Mr. Amadi went to the Registry in the hopes of transferring title to the property before Mr. Oli could put his mortgage on record, and was surprised to learn that it was already there. He afterwards pursued this case because he had nothing to lose, [Note 20] and because he mistakenly believed that Mr. Oli's failure to record the originally-signed document would invalidate the mortgage.

Why then did Ms. Uwababyeyi deny notarizing - in her deposition and affidavit - Mr. Amadi's signature on the note and mortgage? [Note 21] I believe the answer lies in her statements to attorney Ezenwa Nwogu. As she told him, she is a refugee from Rwanda and the sole provider for her family. As a long-time acquaintance, Mr. Amadi certainly knew this and, to get her cooperation, threatened to inform her employer that she was notarizing non-bank documents. [Note 22] He may also have told her that he would accuse her of notarizing them without his being present, potentially even more disruptive even though not true. Fearful for her job and concerned for the well-being of her family if she lost it, Ms. Uwababyeyi decided it would be best to appease Mr. Amadi. Her actions began innocently enough - the signing of an affidavit prepared by Mr. Amadi's attorney stating that she had not notarized his signature on the mortgage instrument, which she believed would be all that was required to strike the mortgage from the Registry records and make her problem go away. [Note 23] But this did not happen and now she was locked into her story, under oath, with serious consequences if she changed it. [Note 24], [Note 25]

Conclusion

For the foregoing reasons, I find and rule that Mr. Oli did not forge the signature of Mr. Amadi on either the note or the mortgage, that the signatures on the originals of those documents were placed there by Mr. Amadi, and that Mr. Amadi is thereby bound by the terms and conditions of those documents. Judgment shall enter accordingly.

SO ORDERED.