[Cite as State ex rel. Kirin v. Krichbaum,

.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE ex rel. VICTOR J. KIRIN, JR. ) CASE NO. 16 MA 0011 ) RELATOR ) ) VS. ) OPINION AND ) JUDGMENT ENTRY JUDGE R. SCOTT KRICHBAUM ) ) RESPONDENT )

CHARACTER OF PROCEEDINGS: Complaint in Mandamus.

JUDGMENT: Complaint Dismissed.

APPEARANCES:

For Relator: Victor J. Kirin, Jr., Pro se 15 North Beverly Avenue Austintown, Ohio 44515

For Respondent: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Gina DeGenova Bricker Assistant Prosecuting Attorney 21 West Boardman Street, 5th Floor Youngstown, Ohio 44503

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: March 4, 2016 [Cite as State ex rel. Kirin v. Krichbaum,

.] PER CURIAM.

{¶1} Relator Victor J. Kirin Jr. has filed this original action on his own behalf

and captioned it as a complaint in mandamus. Respondent Judge R. Scott

Krichbaum has filed a combined answer and motion for judgment on the pleadings.

{¶2} Respondent presided over a case in which Nationstar Mortgage LLC

obtained a decree in foreclosure against Relator in the Mahoning County Common

Pleas Court. Nationstar Mtge. LLC v. Kirin, Mahoning C.P. No. 2014 CV 02075 (Apr.

28, 2015). In that case, Relator filed a motion for new trial which was overruled by

Respondent. Relator did not file an appeal of either the decree in foreclosure or the

judgment entry overruling his motion for new trial.

{¶3} What can be gleaned from Relator’s allegations in this action is

essentially that Nationstar’s attorneys engaged in misconduct and perpetrated a

fraud upon the trial court by submitting fraudulent assignments of the note and/or

mortgage in order to obtain the decree in foreclosure. Specifically, he asks that this

court: (1) declare Respondent’s orders in the foreclosure action “void”; (2) halt all

foreclosure cases and sheriff’s sales in Mahoning County until the state investigates

purported fraudulent assignments; (3) order the Clerk of Courts to notify all

defendants of past foreclosure cases of fraudulent assignments, and (4) schedule

Relator for a personal appearance before this Court in order for him to file criminal

charges against all those who may be responsible for the purported fraudulent acts.

{¶4} A writ of mandamus is an extraordinary remedy which is exercised by

this Court with caution and issued only when the right to relief is clear. State ex rel.

Brown v. Ashtabula Cty. Bd. of Elections,

,

, 31 -2-

N.E.3d 596, ¶11. Entitlement to a writ of mandamus requires the relator to

demonstrate three elements: (1) that there exists a clear legal right to the relief, (2)

respondent has a clear legal duty to provide that relief, and (3) no adequate remedy

at law exists. State ex rel. Taxpayers for Westerville Schools v. Franklin Cty. Bd. of

Elections,

,

,

. The burden is

on the relator to establish the elements necessary to obtain the writ. State ex rel.

Cochran v. Boardman Twp. Bd. of Trustees,

,

,

(7th Dist.), citing State ex rel. Dehler v. Sutula,

,

(1995).

{¶5} It is apparent that Relator has failed to demonstrate the third element

necessary for issuance of the extraordinary writ of mandamus: absence of an

adequate remedy at law. “A cause of action in mandamus, filed originally * * * in the

court of appeals, will not lie where it is determined that the relator has a plain and

adequate remedy in the ordinary course of the law by way of appeal.” State ex rel.

Middletown Bd. of Edn. v. Butler Cty. Budget Comm.,

,

(1987), syllabus. To the extent Relator claims error with the decree in

foreclosure in his case, he has not pursued an appeal from that order. In regard to

Relator’s claims that the decree in foreclosure was fraudulently obtained, he can file

a Civ.R. 60(B)(3) motion for relief from judgment and appeal from an adverse ruling

on the motion if, in fact, the ruling is adverse. State ex rel. Neff v. Corrigan,

,

(1996). -3-

The mere fact that pursuing an available remedy of appeal at the

conclusion of the proceedings encompasses more delay and

inconvenience than seeking a writ of mandamus is insufficient to

prevent the process from constituting a plain and adequate remedy in

the ordinary course of the law.

State ex rel. Logue v. Fregiato, 7th Dist. No. 01-BA-53,

, ¶19, citing

State ex rel. Willis v. Sheboy,

,

(1983).

{¶6} As for Relator’s taking issue with Respondent presiding over the

foreclosure action, if he believed that Respondent was biased or prejudiced against

him at any stage of the proceedings in the trial court, his remedy was to file an

affidavit of interest, bias, prejudice or disqualification with the clerk of the Ohio

Supreme Court. R.C. 2701.03. R.C. 2701.03 provides the exclusive means by which

a litigant may claim that a common pleas judge is biased and prejudiced. Berdyck v.

Shinde,

,

(6th Dist. 1998); Jones v.

Billingham,

,

(2d Dist. 1995). Only the Chief

Justice of the Ohio Supreme Court or his designee has the authority to pass upon the

disqualification of a common pleas court judge. Beer v. Griffith,

,

(1978); State v. Dougherty,

,

(3d Dist. 1994). An appellate court lacks the authority to pass upon the

disqualification of a common pleas court judge or to void the judgment of a trial court

on that basis. Beer,

,

; Dougherty, 99 Ohio -4-

App.3d at 269,

. Therefore, this Court is without jurisdiction to

address this issue.

{¶7} Concerning Relator’s desire to pursue criminal charges, he possesses

an adequate remedy at law through R.C. 2935.09(D) which provides a formal

mechanism by which a private citizen can seek to have criminal charges filed.

{¶8} Lastly, we address that portion of Relator’s motion where he seeks to

obtain relief for all other persons who have had foreclosure actions decided or who

have pending foreclosure cases in Mahoning County. “Standing in a mandamus

action is limited.” State ex rel. Internatl. Assn. of Fire Fighters, Local 381 v. Findlay,

3d Dist. No. 5-05-21,

. “An injury that is borne by the population

in general, and which does not affect the plaintiff in particular, is not sufficient to

confer standing.” ProgressOhio.org, Inc. v. JobsOhio, 10th Dist. No. 11AP-1136,

, ¶8. Consequently, Relator lacks standing to ask this Court to

interpose in those cases on his behalf to which he was not a party.

{¶9} Relator’s complaint for a writ of mandamus is dismissed. Costs taxed

to Relator. Final order. Clerk to serve notice as provided by the Civil Rules.

Waite, J., concurs.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.