¶1concurring and dissenting.
¶2[¶ 46] Because I would affirm the district court’s judgment, I respectfully concur and dissent from the majority opinion and disagree with the other separate opinion in this case.
¶3[¶ 47] Contrary to the conclusion of the district court, the appealing defendants assert that Main Realty, Inc., had “no interest in” the real estate listings it transferred to Mainland, Inc.
¶4*854[¶ 48] To the extent that the majority opinion accepts the premise that Main Realty, Inc., had no interest in the listing contracts or that those contracts had no value to it, I respectfully disagree.
¶5[¶ 49] The broker was Main Realty, Inc. As a matter of North Dakota law, the listing contracts are contracts between the owner of the listed property and that broker. See N.D.C.C. ch. 43-23. Under statute and under the listing contract, it is the broker who is entitled to receive the commission. See N.D.C.C. § 43-23-06.1(8); 15 Richard R. Powell, Powell on Real Property § 84C.01[1] (Michael A. Wolf ed., 2000). The obligation of the broker to pay the salesperson some or all of the commission received by the broker is an independent and apparently unsecured obligation. See N.D.C.C. § 43-23-06.1(10); 15 Powell on Real Property § 84C.01[2].
¶6[¶ 50] Because the listing contracts are an asset of the broker, both plaintiffs here and the salespersons have a potential claim against their value. The transfer of the asset by an undercapitalized, insolvent broker company was fraudulent, as the district court carefully analyzed under the Uniform Fraudulent Transfer Act, N.D.C.C. ch. 13-02.1.
¶7[¶ 51] The regulation of real estate brokers and salespeople by the states is an exercise of their police power “to protect the public from fraud and misrepresentations of dishonest or incompetent persons.” 15 Powell on Real Property § 84C.02[1], Our regulatory system and the Fraudulent Transfer Act reflect the correctness of the district court’s analysis.
¶8[¶ 52] Dale V. Sandstrom