[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.