State ex rel. Kirin v. Krichbaum ( 2016 )

[Cite as State ex rel. Kirin v. Krichbaum, 2016-Ohio-887.]
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, 2016-Ohio-887.]
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, 142 Ohio St. 3d 370, 2014-Ohio-4022, 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, 133 Ohio St. 3d 153, 2012-Ohio-4267, 976 N.E.2d 890, ¶12. 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, 196 Ohio App. 3d 185, 2011-Ohio-4255,
962 N.E.2d 852, ¶6 (7th Dist.), citing State ex rel. Dehler v. Sutula, 74 Ohio St. 3d 33,
34, 656 N.E.2d 332 (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., 31 Ohio St. 3d 251, 510 N.E.2d
383 (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, 75 Ohio
St.3d 12, 17, 661 N.E.2d 170 (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, 2002-Ohio-1028, ¶19, citing
State ex rel. Willis v. Sheboy, 6 Ohio St. 3d 167, 451 N.E.2d 1200 (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, 128 Ohio App. 3d 68, 81, 713 N.E.2d 1098 (6th Dist.1998); Jones v.
Billingham, 105 Ohio App. 3d 8, 11, 663 N.E.2d 657 (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, 54 Ohio St. 2d 440,
441, 377 N.E.2d 775 (1978); State v. Dougherty, 99 Ohio App. 3d 265, 268-269, 650
N.E.2d 495 (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, 54 Ohio St. 2d at 441-442, 377 N.E.2d 775; Dougherty, 99 Ohio
-4-
App.3d at 269, 650 N.E.2d 495. 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, 2006-Ohio-1774, ¶18. “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,
2012-Ohio-2655, ¶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.