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Published on 02/23/1998 All articles from this issue

Elder care fraud trial may head for jury soon

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By Joanne Griffith Domingue / Town Crier Staff Writer

Soon a jury will decide if the manager of a local thrift extended loving service to an elderly widow or if he exercised undo influence, crossing a line into elder fraud.

The civil trial, that begins its third week today in Santa Clara County Superior Court before Judge Joseph F. Biafore Jr., grew from a lawsuit first filed in 1995 by the public guardian, the public administrator and the special administrator of the estate of a bank customer.

The lawsuit names Downey Savings and Loan Association, Mark Asplund, 36, manager of the Los Altos branch of Downey in Loyola Corners since 1990, and Asplund's wife Kathy, who had been the branch manager before him.

Asplund supporters believe Mark and Kathy have done nothing wrong.

"As Mark's neighbor, Mark's pastor and personal friend, I will stand by this man," said Brian Morgan, a Los Altos resident and pastor of Peninsula Bible Church Cupertino.

"Our church has said 'we love you, and we'll surround you,'" Morgan said in an interview. "I'll put my reputation on Mark's innocence, as a pastor in this community for 24 years."

In November 1992 a longtime Downey customer and Los Altos resident, Fred Mosher, died. In July 1993, according to court testimony, his widow, Terry P. Mosher, closed her Downey account of $294,000, moved it to Home Savings as a joint tenancy account, and put Asplund and his wife, Kathy, on the account with the right of survivorship,

Asplund admitted in court that by August 1993 he had used $20,000 to buy a pickup truck, had been named executor of Mosher's will, was a beneficiary of her estate and had used $15,000 to pay off debt.

Some became alarmed by this financial activity. On June 20, 1994, a petition was filed for a conservatorship for Mosher to protect her interests.

By August 1994 Asplund had received $10,000 in cash gifts, his parents had a $20,000 cash gift, Asplund had power of attorney and he had been made a beneficiary of Mosher's trust, according to court testimony.

Asplund's pastor explains the gifts. "Mosher was just a very generous woman who loved them (the Asplunds)."

But Fred Mosher's daughter, Christine Von Rathmann, may have felt differently. Perhaps she saw a young bank manager influencing her stepmother to squander her father's money.

Asplund hired an attorney and contested the conservatorship. But it was granted in August, which then cut him off from Mosher's money, according to court testimony.

In the fall of 1994 the county investigated Mosher's financial affairs and filmed 12 hours of depositions taken from her on Sept. 15, Oct. 24 and Nov. 3.

By early 1995 the lawsuit was filed. After years of negotiations and settlement conferences, the last held Feb. 4, 1998, according to court records, the case went to trial. Terry Mosher died in 1995.

Three and a half hours of the 12 hours of video of the Mosher depositions were shown in court last Thursday and Friday.

The judge ordered that nothing from the video be reported.

The judge has also warned anyone connected with the trial not to talk with the press.

Asplund, in the fifth week of a personal leave from Downey, declared bankruptcy in January. He represents himself in the trial.

Michael Desmarais represents the public guardian's office. Robert L. Mezzetti represents Mosher's stepdaughter, Christine Von Rathman.

According to court documents, Mosher heirs are seeking $748,000 in general damages on behalf of Mosher's estate and up to $10 million in punitive damages against Downey.