(concurring in part and dissenting in part):
It is with reluctance that I conclude that I cannot concur entirely in the well-written opinion of Judge Wilkey, concurred in by Chief Judge Bazelon.
A lengthy dissent is unnecessary. Suffice it to say that I am not in disagreement with the affirmance of the Manufacturers’ claim or with the finding that the Trustee has standing to attack the validity of the deeds of trust. I have also concluded, with some reluctance, to approve the return of the Equitable claim to the District Court for a further hearing in which all defenses can be thoroughly developed. However, as to Hartford, for the reasons hereafter stated, I would affirm.
It should be noted, although discussed by Judge Wilkey, that all the real estate covered by the deeds of trust which are before us is located in the State of Maryland, not the District of Columbia. It is conceded that the indebtedness secured by each of these deeds of trust, if measured by Maryland law, is valid.
The statute in question is a licensing statute. It is not a usury statute as such. See Indian Lakes Estates, Inc. v. Ten Individual Defendants, 121 U.S.App.D.C. 305, 311, 350 F.2d 435, 441 (1965). The majority opinion recognizes that this case does not involve a violation of the District of Columbia usury law “but rather concerns the loan shark statute which imposes a disability on certain lenders, i. e., non-exempt, unlicensed lenders, to charge interest in excess of 6%.”
I do not believe it was the intention of the Loan Shark Act to cover transactions of this nature. Thus, if they are in violation of the District of Columbia law, and admittedly are valid under Maryland law, I would, in the absence of an intent to avoid or violate the District Loan Shark Act, consider that in applying the more usual factors. To apply the Loan Shark Act results in a windfall to the Bankrupt, a situation which should be frowned upon almost to the same extent as loan shark operations. This too becomes a background factor.
I approve the statement of factors, set forth in that portion of the majority opinion dealing with Manufacturers, which are to be considered in determining whether to apply the law of Maryland or of the District of Columbia, and I will not repeat them. However, as I weigh and balance the contacts, I conclude, as with the Manufacturers claim, that application of Maryland law should also be favored in deciding the Hartford claim.
The Hartford contacts in Maryland are nearly the same as for Manufacturers. The property is in Maryland; the maker of the note and deed of trust was a Maryland corporation; the papers were executed in Maryland; the money was paid in Maryland. Thus, I conclude it became a Maryland contract to which Maryland law should be applied.
In addition, I disagree with my brethren that Walker & Dunlop are not exempt from the Loan Shark Act. There is no claim here that Walker & Dunlop were loan sharks, as such, or persons of the type which the congressional history shows the law was intended to regulate and license.
It is difficult to trace the history of the Loan Shark Act because codifiers of the District of Columbia code are said to have lost the original. It is clear, however, that “real estate brokers” was a term which was defined in the original Act of Congress of July 1, 1902. 32 Stat. 621. Its definition of real estate brokers is set forth in the majority opinion. I will not repeat it here. I agree that it is a poorly worded statute if it is to be read as the majority opinion would read it. However, I do not read the words “as *178the agent for others” in paragraph 15 of the Act of July 1, 1902, as a limitation upon the subsequent words “who makes or negotiates loans thereon.” As I read the Act and its history, it was intended to exempt real estate brokers from the Loan Shark Act, including not only persons who sell real estate or offer it for sale as the agent for others, but also persons who make or negotiate loans on real estate or who “rent houses, buildings, stores, or real estate or who collect rent for others. . . . ” Thus, I conclude that Walker & Dunlop were exempt from the licensing requirement of Section 26-601.
I would affirm both as to Hartford and Manufacturers.