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]
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.
[Note 1] Suffolk County Registry of Deeds, Book 46316, Page 125 (April 22, 2010). The note is an attachment to the mortgage.
[Note 2] The note states that it is due and payable only when the condominium is sold or its ownership and title otherwise transferred. The mortgage is on the condominium.
[Note 3] Her deposition was admitted into evidence pursuant to Mass. R. Civ. P. 32, as Ms. Uwababyeyi lives and works in Georgia and is thus not subject to subpoena by this court. Her deposition was taken by telephone.
[Note 4] Mr. Fraser testified that the documents he examined, purportedly the originally signed documents, were actually photocopies and did not bear any original signatures. I believe that testimony in full. Mr. Fraser, however, was neither retained nor opined on the question of whether the signatures on the documents were those of Mr. Amadi. To be fair, this may not have been in issue. Mr. Amadi's contention at trial was not that they weren't his signatures, but rather that they were copies of his signature taken from other documents he had signed and thus a forgery in that sense. Mr. Amadi did not, however, produce these other documents to back up this claim (he speculated, but offered no evidence, that they were documents he signed for Mr. Oli in connection with a transaction in their native Nigeria). Such comparison is critical to corroborate Mr. Amadi's claim because no one signs their name precisely the same way more than once. If two signatures match up precisely, the odds are great that one is a copy of the other, the first-signed being the original. Thus, if Mr. Amadi had been able to show an earlier document with an identical signature on it, this case would be over, in his favor. However, as discussed more fully below, each of the signatures and notarial stamps on the note and mortgage at issue in this case is different from all the others, and different yet again from all of the other exemplars introduced into evidence. Each of these exemplars is recognizably from the same hand, but each has the subtle differences from the others that are expected to be seen when a name is signed or a stamp applied. See, e.g, the Amadi signature on the note, the Amadi signature on the mortgage, the Amadi signatures endorsing the two $10,000 checks from COLI, Ms. Uwababyeyi's signature on the note and Ms. Uwababyeyi's signature on the mortgage, each of which is slightly different from all the others.
[Note 5] Attorney Ezenwa Nwogu is another mutual friend of the parties (he represented Mr. Oli in a small claims case many years ago, and was once married to Mr. Amadi's sister). He is also the attorney who drafted the templates on which the note and mortgage in this case were based, provided those templates to Mr. Oli, and then recorded the mortgage (with the note attached) for Mr. Oli in the Suffolk County Registry of Deeds after the templates came back retyped with the details of the loan and mortgaged property inserted in the appropriate places.
[Note 6] At the outset of trial, Mr. Amadi asserted that a predicate issue in this case (whether he was indebted to Mr. Oli at all, which would make the forgery issue moot) had been addressed and determined in the negative in previous actions between the parties, and that the doctrines of res judicata, issue preclusion, and collateral estoppel thus required judgment to be entered in his favor in this matter. See COLI Inv. & Fin. Grp. v. Amadi, Gwinnet Co. (Georgia) Magistrate Ct. Civil Action Nos. 10M23895 & 10M23897. For those doctrines to apply, however, "a final judgment on the merits is necessary." In re Bell Atl. Mobile of Mass. Corp., 456 Mass. 728 , 738 n.15 (2010). Since both of the Georgia actions were dismissed without explanation from the court, I am unable to determine what issues were resolved in those actions, if any, and whether those issues were resolved "on the merits." Those dismissals may, for example, have been based on a ruling that the debt was not yet due - a ruling consistent with the promissory note in this case which states that the debt is not due and payable until the Boston condominium is sold. Mr. Amadi's reliance on res judicata, issue preclusion, and collateral estoppel thus fails.
[Note 7] Both are reflected in cancelled checks made payable to Mr. Amadi.
[Note 8] I do not believe Mr. Oli when he said the mortgage at issue in this case was signed in October 2008. Among other things, it references the promissory note which was signed in April 2010, and attorney Nwogu testified that both the note and mortgage were based on templates he sent Mr. Oli in April 2010. I do believe, however, that placing a mortgage on the Boston condominium to secure the $20,000 debt was discussed and agreed by the parties in October 2008. An actual mortgage document, however, was neither prepared nor signed at that time.
[Note 9] Among other things, Mr. Amadi was considerably in arrears on the payment of the Boston condominium's common area charges. The condominium association brought a civil action against him on December 8, 2009 in Suffolk Superior Court seeking payment of $3,732.88 for such unpaid charges, and foreclosure on the unit if it continued to be unpaid. Suffolk County Registry of Deeds, Book 45820, Page 231.
[Note 10] As it turned out, Mr. Amadi ended up borrowing the HVAC money from his sister.
[Note 11] It had already been over 18 months since the second $10,000 was lent, and there did not appear to be any immediate prospects for its sale. I note that the unit still has not sold, despite an order allowing its sale so long as the $25,000 was escrowed pending entry of judgment in this case.
[Note 12] See Suffolk County Registry of Deeds, Book 46316, Page 125 (Apr. 22, 2010).
[Note 13] According to Mr. Oli, the documents were signed and notarized after banking hours at his car in the parking lot of the bank where Ms. Uwababyeyi worked. He and Mr. Amadi drove there to meet Ms. Uwababyeyi, a notary whom they both knew.
[Note 14] Because of this, I do not rely on them in any way, but I would be remiss not to note their existence and what appears to be their compliance with Mr. Fraser's indicia for determining whether a signature is, in fact, an "original".
[Note 15] It may also be the only investment property Mr. Amadi presently owns since his current activities seemingly concentrate on the brokerage of loans for others rather than the acquisition, renovation and sale of homes for himself.
[Note 16] Different from each other, and different from both of the signatures endorsing the checks.
[Note 17] Different from the one on the note.
[Note 18] Different from the one on the note.
[Note 19] Mr. Amadi contends that he went to the Registry to acquire a copy of the deed at the request of his Medford real estate agent whom he had hired to sell his Boston condominium unit (the same unit at issue in this action). Even assuming that Mr. Amadi had a conversation with such a broker at or about this time, and further assuming that Mr. Amadi himself was unaware that the deed was accessible electronically, certainly the broker would have known that the deed was accessibly electronically. It is simply not credible that the broker would request that Mr. Amadi produce a copy of the deed when such a copy was easily accessible by the broker without even needing to leave her office. Even if I assume that the realtor lacked an internet connection (an extremely unlikely assumption), it is simply not credible that the realtor would have requested that Mr. Amadi - a resident of Atlanta - obtain a copy of the deed when the realtor could have driven the relatively short distance from Medford to Boston. Even more incredible is the notion that Mr. Amadi would oblige such a request, particularly given the cost of an airplane ticket.
[Note 20] If he lost, the mortgage would simply stay on record. If he won, it would be removed and he could sell the property free and clear of the lien.
[Note 21] Although Ms. Uwababyeyi admitted notarizing the promissory note, she claims that the note was incomplete at the time of its notarization (i.e. that it lacked the signature of Mr. Amadi). I do not find this contention credible. OCGA 45-17-8F states, in pertinent part, that notaries shall not notarize incomplete documents. While Ms. Uwababyeyi claimed to be unaware of this rule, I. do not find her claim. of ignorance likely, especially for a bank officer who routinely notarizes important legal documents. I also find it unlikely that she would risk the consequences of violating OCGA 45-17-8F for Mr. Oli, a man whom she views solely as a "client" and with whom she claims to have no personal relationship. I thus find that Ms. Uwababyeyi notarized the promissory note because the document was complete and because Mr. Amadi was present.
[Note 22] There was testimony at trial suggesting that Mr. Uwababyeyi is only authorized by her employer (Bank of America) to notarize bank documents.
[Note 23] I do not fault Mr. Amadi's counsel for this. He was only reflecting what Mr. Amadi told him, and Mr. Amadi had already had a series of previous conversations with Ms. Uwababyeyi letting her know his position.
[Note 24] Although she could not be subpoenaed, Ms. Uwababyeyi could voluntarily have come to trial to testify - something that would have been expected since her credibility was on the line. It is also interesting that Mr. Amadi made a point of attending her deposition and watched her the entire time.
[Note 25] I do not believe Ms. Uwababyeyi's deposition testimony that Mr. Oli came into her office one day, apparently without prompting, and volunteered that he had electronically forged her signature and Mr. Amadi's signatures on the documents, nor do I believe that he later attempted to bribe her into testifying that Mr. Amadi did sign the note and mortgage. The former is unlikely--an unprompted confession to a criminal act, to the person whose signature and notarization you allegedly had forged? - and sounds too much like something Mr. Amadi suggested her to say. If this were true, she surely would have reported Mr. Oli to the police. Her testimony that Mr. Oli attempted to bribe her into supporting his version of events is also unlikely. Surely this too would have been reported to the police. I can believe that Mr. Oli lamented that these court proceedings would be expensive for him, but I do not believe he offered her money to change her story. She had already provided an affidavit to Mr. Amadi's lawyer, and changing the testimony in that affidavit would have brought further inquiry.