It’s trendy to label certain obvious transgressions, even if not necessarily illegal, as “criminal.”
Such call-outs are often minor: “Oh, that umpire calling that ball a strike was just criminal!”
But some can be bigger in scale: “It’s criminal the way Fremont targeted minorities with its subprime loans.”
Fortunately, in many places, the more egregious mortgage fraud acts like the Fremont case mentioned above actually are criminal. But unfortunately, that’s not the case here in our beloved Bay State.
We’re sure there are all kinds of reasons for not having criminalized mortgage fraud in Massachusetts in the years leading up to, and during, the housing boom of 2003-2007. In those days, making mortgages made a lot of people a lot of money, and worrying about gray areas like legality would have only slowed the mortgage gravy train.
As long as everyone was making money, it was easy to look the other way. Sure, a slightly fishy odor may have caught our noses now and again, but in a lending arena with an already-razor-thin margin for error, who really wanted to be the one to step in and derail the whole thing? We get that, to a certain degree.
But what we don’t understand is how, in the intervening two-plus years since the train jumped the tracks on its own, a statute criminalizing mortgage fraud in Massachusetts still hasn’t made its way onto the books – especially since such a statute has the support of Gov. Deval Patrick and Attorney General Martha Coakley.
Hindsight is 20/20, of course. But even in the immediate aftermath of the subprime collapse, it seemed obvious who the culprits were and what their punishment ought to have been. Now, after two years of further analysis, those conclusions should only benefit from more clarity: Folks were engaged in morally and financially unlawful acts. The fact that they weren’t criminal, at the time, should have been an easily fixable detail.
But, to date, that easy fix has been anything but.
Lest one feel tempted to fall back on the old “Well, that’s the speed of doing business in bureaucratic Bay State politics” argument, keep in mind what can happen in two years given the political will to push it through.
Nationally, President Obama has passed unprecedented spending packages, aimed, in part, at jolting our economy back to life. A health care system living largely on its own momentum for more than 40 years was overhauled in approximately 12 months.
Closer to home, two years ago, today’s seemingly all-but-passed casino gaming legislation was essentially dead.
Whether or not one agrees with these policy shifts is secondary to the fact that, with the appropriate amount of will put behind them, they all came to pass relatively quickly.
But in those same two years, the relatively simple task of criminalizing mortgage fraud has yet to muster enough will to become law.
And that leaves us wondering why.
Political will is a funny, and fickle, thing. Subject to varied and often competing crosswinds in the form of public opinion, financial viability and outright timeliness, where there is a will today sometimes means that same will may blow away tomorrow.
Helping to blow that will out the door is often the gentle breath of trade associations or lobbyists whispering in solons ears. Constituent groups and special interests wield enormous influence over our elected representatives, so much so that a representative may talk a big game about a particular issue in public, but be conspicuously absent come voting day. It happens all the time.
We’re not suggesting any known influence by anyone on the issue of keeping mortgage fraud a non-criminal act. We don’t know what goes on at all times behind closed doors at the statehouse.
But we’re not naïve enough to assume that a proposal to make mortgage fraud a criminal act in Massachusetts simply fell on Beacon Hill’s cutting room floor four years ago, on its own, and has stayed there ever since.
Something has sapped the political will in Massachusetts to get this deal done.
And that, indeed, is truly criminal.





