UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
| [X] | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the Quarterly Period Ended September 30, 2010
OR
| [ ] | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from ________ to __________
Commission file number 000-17248
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
(Exact Name of Registrant as Specified In Its Charter)
| California | 68-0023931 | |
| (State or other jurisdiction | (I.R.S. Employer Identification No.) | |
| of incorporation or organization) | ||
| 2221 Olympic Boulevard | ||
| Walnut Creek, California | 94595 | |
| (Address of principal executive offices) | (Zip Code) | |
| (925) 935-3840 | ||
| Registrant’s telephone number, including area code |
NOT APPLICABLE
(Former name, former address and former fiscal year, if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or such shorter period that the registrant was required to submit and post such files). Yes [ ] No [ ]
1
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer [ ] | Accelerated filer [ ] |
Non-accelerated filer [ ] (Do not check if a smaller reporting company) | Smaller reporting company [X] |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).
Yes [ ] No [X]
2
TABLE OF CONTENTS
| PART I – FINANCIAL INFORMATION | ||
| Page | ||
| Item 1. | Financial Statements | 4 |
| Item 2. | Management’s Discussion and Analysis of Financial Condition and Results of Operations | 30 |
| Item 4. | Controls and Procedures | 46 |
| PART II – OTHER INFORMATION | ||
| Item 1. | Legal Proceedings | 46 |
| Item 3. | Defaults Upon Senior Securities | 46 |
| Item 6. | Exhibits | 47 |
Exhibit 10.1
Exhibit 31.1
Exhibit 31.2
Exhibit 32
3
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Consolidated Balance Sheets
September 30, 2010 and December 31, 2009
(UNAUDITED)
| September 30, | December 31, | ||||||
| 2010 | 2009 | ||||||
| ASSETS | |||||||
| Cash and cash equivalents | $ | 4,644,440 | $ | 7,530,272 | |||
| Restricted cash | 986,150 | 986,150 | |||||
| Certificates of deposit | 3,070,213 | 1,715,591 | |||||
| Loans secured by trust deeds, net of allowance for losses of $23,318,161 in 2010 and $28,392,938 in 2009 | 164,991,714 | 183,390,822 | |||||
| Interest and other receivables | 4,976,431 | 4,644,320 | |||||
| Vehicles, equipment and furniture, net of accumulated depreciation of $276,848 in 2010 and $268,309 in 2009 | 422,417 | 626,543 | |||||
| Other assets, net of accumulated amortization of $659,511 in 2010 and $599,050 in 2009 | 927,497 | 560,259 | |||||
| Investment in limited liability company | 2,188,028 | 2,141,980 | |||||
| Real estate held for sale | 12,374,412 | 10,852,274 | |||||
| Real estate held for investment, net of accumulated depreciation and amortization of $5,511,481 in 2010 and $4,388,466 in 2009 | 79,906,682 | 69,036,262 | |||||
| Total Assets | $ | 274,487,984 | $ | 281,484,473 | |||
| LIABILITIES AND PARTNERS’ CAPITAL | |||||||
| LIABILITIES: | |||||||
| Accrued distributions payable | $ | 288,000 | $ | 51,407 | |||
| Due to general partner | 406,944 | 362,210 | |||||
| Accounts payable and accrued liabilities | 2,675,225 | 2,135,011 | |||||
| Deferred gains | 1,481,469 | 855,482 | |||||
| Note payable | 10,430,437 | 10,500,000 | |||||
| Line of credit payable | 16,375,680 | 23,695,102 | |||||
| Total Liabilities | 31,657,755 | 37,599,212 | |||||
| PARTNERS’ CAPITAL (units subject to redemption): | |||||||
| General partner | 2,495,587 | 2,512,399 | |||||
| Limited partners | 240,314,396 | 241,338,206 | |||||
| Total Owens Mortgage Investment Fund partners’ capital | 242,809,983 | 243,850,605 | |||||
| Noncontrolling interest | 20,246 | 34,656 | |||||
| Total partners’ capital | 242,830,229 | 243,885,261 | |||||
| Total Liabilities and Partners’ Capital | $ | 274,487,984 | $ | 281,484,473 | |||
The accompanying notes are an integral part of these consolidated financial statements.
4
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Consolidated Statements of Operations
For the Three and Nine Months Ended September 30, 2010 and 2009
(UNAUDITED)
| For the Three Months Ended | For the Nine Months Ended | ||||||||||||
September 30, 2010 | September 30, 2009 | September 30, 2010 | September 30, 2009 | ||||||||||
| REVENUES: | |||||||||||||
| Interest income on loans secured by trust deeds | $ | 1,904,440 | $ | 3,091,026 | $ | 6,234,406 | $ | 11,834,223 | |||||
| (Loss) gain on sales of real estate, net | (31,147 | ) | 5,745 | 157,785 | 67,613 | ||||||||
| Rental and other income from real estate properties | 2,280,137 | 1,897,319 | 5,876,892 | 4,392,572 | |||||||||
| Income from investment in limited liability company | 38,259 | 36,025 | 111,048 | 104,346 | |||||||||
| Other income | 6,987 | 3,563 | 15,283 | 36,641 | |||||||||
| Total revenues | 4,198,676 | 5,033,678 | 12,395,414 | 16,435,395 | |||||||||
| EXPENSES: | |||||||||||||
| Management fees to general partner | 658,122 | 623,606 | 1,713,439 | 1,645,200 | |||||||||
| Servicing fees to general partner | 121,740 | 152,951 | 381,518 | 473,516 | |||||||||
| Administrative | 15,000 | 15,000 | 45,000 | 45,000 | |||||||||
| Legal and professional | 109,560 | 139,311 | 358,749 | 525,881 | |||||||||
| Rental and other expenses on real estate properties | 2,344,760 | 1,909,510 | 6,399,532 | 4,743,028 | |||||||||
| Interest expense | 486,438 | 715,653 | 1,596,949 | 1,855,698 | |||||||||
| Provision for loan losses | (1,223,936 | ) | 2,309,206 | 623,812 | 13,429,151 | ||||||||
| Impairment losses on real estate properties | — | — | 465,294 | 356,045 | |||||||||
| Other | 23,531 | 19,395 | 74,813 | 148,506 | |||||||||
| Total expenses | 2,535,215 | 5,884,632 | 11,658,256 | 23,222,025 | |||||||||
| Net income (loss) from continuing operations | $ | 1,663,461 | $ | (850,954 | ) | $ | 737,158 | $ | (6,786,630 | ) | |||
| Net income (loss) from discontinued operations (including gain on sale of $161,002 in 2010) | 125,690 | (45,609 | ) | 48,315 | (120,907 | ) | |||||||
| Net income (loss) | $ | 1,789,151 | $ | (896,563 | ) | $ | 785,473 | $ | (6,907,537 | ) | |||
| Less: Net income (loss) attributable to non-controlling interest | 196 | (5,591 | ) | (608 | ) | (5,965 | ) | ||||||
| Net income (loss) attributable to Owens Mortgage Investment Fund | $ | 1,789,347 | $ | (902,154 | ) | $ | 784,865 | $ | (6,913,502 | ) | |||
| Net income (loss) allocated to general partner | $ | 17,992 | $ | (9,264 | ) | $ | 8,489 | $ | (66,662 | ) | |||
| Net income (loss) allocated to limited partners | $ | 1,771,335 | $ | (892,890 | ) | $ | 776,376 | $ | (6,846,840 | ) | |||
| Net income (loss) allocated to limited partners per weighted average limited partnership unit | $ | .007 | $ | (.004 | ) | $ | .003 | $ | (.03 | ) | |||
| Weighted average limited partnership units | 239,951,000 | 256,809,000 | 240,794,000 | 259,961,000 | |||||||||
The accompanying notes are an integral part of these consolidated financial statements.
5
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Consolidated Statements of Partners’ Capital
For the Nine Months Ended September 30, 2010 and 2009
(UNAUDITED)
| General | Limited partners | Total OMIF | Total | ||||||||||||||||
| Partners’ | Noncontrolling | Partners' | |||||||||||||||||
| partner | Units | Amount | capital | interest | capital | ||||||||||||||
| Balances, December 31, 2008 | $ | 2,781,730 | 270,617,699 | $ | 270,421,679 | $ | 273,203,409 | $ | 68,645 | $ | 273,272,054 | ||||||||
| Net (loss) income | (66,662 | ) | (6,846,840 | ) | (6,846,840 | ) | (6,913,502 | ) | 5,965 | (6,907,537 | ) | ||||||||
| Sale of partnership units | — | 100,040 | 100,040 | 100,040 | — | 100,040 | |||||||||||||
| Partners’ withdrawals | — | (5,110,006 | ) | (5,110,006 | ) | (5,110,006 | ) | — | (5,110,006 | ) | |||||||||
| Partners’ distributions | (61,705 | ) | (3,418,870 | ) | (3,418,870 | ) | (3,480,575 | ) | (30,465 | ) | (3,511,040 | ) | |||||||
| Balances, September 30, 2009 | $ | 2,653,363 | 255,342,023 | $ | 255,146,003 | $ | 257,799,366 | $ | 44,145 | $ | 257,843,511 | ||||||||
| Balances, December 31, 2009 | $ | 2,512,399 | 241,534,226 | $ | 241,338,206 | $ | 243,850,605 | $ | 34,656 | 243,885,261 | |||||||||
| Net income | 8,489 | 776,376 | 776,376 | 784,865 | 608 | 785,473 | |||||||||||||
| Partners’ distributions | (25,301 | ) | (1,800,186 | ) | (1,800,186 | ) | (1,825,487 | ) | (15,018 | ) | (1,840,505 | ) | |||||||
| Balances, September 30, 2010 | $ | 2,495,587 | 240,510,416 | $ | 240,314,396 | $ | 242,809,983 | $ | 20,246 | $ | 242,830,229 | ||||||||
The accompanying notes are an integral part of these consolidated financial statements.
6
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Consolidated Statements of Cash Flows
For the Nine Months Ended September 30, 2010 and 2009
(UNAUDITED)
| September 30, | September 30, | ||||||
| 2010 | 2009 | ||||||
CASH FLOWS FROM OPERATING ACTIVITIES: | |||||||
| Net income (loss) | $ | 785,473 | $ | (6,907,537 | ) | ||
| Adjustments to reconcile net income(loss) to net cash provided by operating activities: | |||||||
| Gain on sales of real estate and other assets, net | (311,797 | ) | (67,613 | ) | |||
| Income from investment in limited liability company | (111,048 | ) | (104,346 | ) | |||
| Provision for loan losses | 623,812 | 13,429,151 | |||||
| Losses on real estate properties | 465,294 | 356,045 | |||||
| Depreciation and amortization | 1,285,975 | 957,774 | |||||
| Changes in operating assets and liabilities: | |||||||
| Due from general partner | -- | 44,162 | |||||
| Interest and other receivables | (1,229,618 | ) | (1,384,844 | ) | |||
| Other assets | (427,699 | ) | (42,871 | ) | |||
| Accounts payable and accrued liabilities | 540,214 | 497,794 | |||||
| Due to general partner | 44,734 | 474,631 | |||||
| Net cash provided by operating activities | 1,665,340 | 7,252,346 | |||||
CASH FLOWS FROM INVESTING ACTIVITIES: | |||||||
| Investment in loans secured by trust deeds | (1,259,045 | ) | (15,771,838 | ) | |||
| Principal collected on loans | 3,983,899 | 16,907,669 | |||||
| Sales of loans to third parties | 2,500,000 | -- | |||||
| Investment in real estate properties | (596,632 | ) | (689,592 | ) | |||
| Net proceeds from disposition of real estate properties | 1,110,387 | 467,643 | |||||
| Purchases of vehicles, equipment and furniture | (7,262 | ) | (167,263 | ) | |||
| (Purchases) maturities of certificates of deposit, net | (1,354,622 | ) | 283,440 | ||||
| Distribution received from investment in limited liability company | 65,000 | 112,000 | |||||
| Net cash provided by investing activities | 4,441,725 | 1,142,059 | |||||
CASH FLOWS FROM FINANCING ACTIVITIES: | |||||||
| Proceeds from sale of partnership units | -- | 100,040 | |||||
| Advances on line of credit payable | -- | 15,546,438 | |||||
| Repayments on line of credit payable | (7,319,422 | ) | (9,014,438 | ) | |||
| Repayments on note payable | (69,563 | ) | -- | ||||
| Distributions to noncontrolling interest in limited liability company | (15,018 | ) | (30,465 | ) | |||
Partners’ cash distributions | (1,588,894 | ) | (3,667,404 | ) | |||
| Partners’ capital withdrawals | -- | (5,110,006 | ) | ||||
| Net cash used in financing activities | (8,992,897 | ) | (2,175,835 | ) | |||
| Net (decrease) increase in cash and cash equivalents | (2,885,832 | ) | 6,218,570 | ||||
| Cash and cash equivalents at beginning of period | 7,530,272 | 2,800,123 | |||||
| Cash and cash equivalents at end of period | $ | 4,644,440 | $ | 9,018,693 | |||
| Supplemental Disclosures of Cash Flow Information | |||||||
| Cash paid during the period for interest | $ | 1,665,247 | $ | 1,733,992 | |||
See notes 2, 4 and 5 for supplemental disclosure of non-cash investing activities.
The accompanying notes are an integral part of these consolidated financial statements.
7
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
In the opinion of the management of Owens Mortgage Investment Fund, a California Limited Partnership, (the “Partnership”) the accompanying unaudited financial statements contain all adjustments, consisting of normal, recurring adjustments, necessary to present fairly the financial information included therein. Certain information and footnote disclosures presented in the Partnership’s annual consolidated financial statements are not included in these interim financial statements. These consolidated financial statements should be read in conjunction with the audited consolidated financial statements included in the Partnership’s Form 10-K for the fiscal year ended December 31, 2009 filed with the Securities and Exchange Commission (“SEC”). The results of operations for the three and nine month s ended September 30, 2010 are not necessarily indicative of the operating results to be expected for the full year ending December 31, 2010. The Partnership evaluates subsequent events up to the date it files its Form 10-Q with the Securities and Exchange Commission.
| Basis of Presentation |
The consolidated financial statements include the accounts of the Partnership and its majority- and wholly-owned limited liability companies (see notes 4 and 5). All significant inter-company transactions and balances have been eliminated in consolidation. The Partnership is in the business of providing mortgage lending services and manages its business as one operating segment.
Certain reclassifications, not affecting previously reported net income or total partner capital, have been made to the previously issued consolidated financial statements to conform to the current year presentation.
Management Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting periods. Such estimates relate principally to the determination of the allowance for loan losses, including the valuation of impaired loans, the valuation of real estate held for sale and investment, and the estimate of the environmental remediation liability (see note 3). Actual results could differ significantly from these estimates.
Income Taxes
No provision for federal and state income taxes is made in the consolidated financial statements since the Partnership is not a taxable entity. Accordingly, any income or loss is included in the tax returns of the partners.
In accordance with the provisions of ASC 740-10, a tax position is recognized as a benefit only if it is “more likely than not” that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely to be realized on examination. For tax positions not meeting the “more likely than not” test, no tax benefit is recorded. The Partnership has elected to record interest and penalties related to unrecognized tax benefits, if any, in other expenses. The total amount of unrecognized tax benefits, including interest and penalties, at September 30, 2010 is zero. The amount of tax benefits that would impact the effective rate, if recognized, is expected to be zero. The Partnership does not anticip ate any significant changes with respect to unrecognized tax benefits within the next twelve months.
8
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Loans Secured by Trust Deeds
Loans secured by trust deeds are stated at the principal amount outstanding. The Partnership’s portfolio consists primarily of commercial real estate loans generally collateralized by first, second and third deeds of trust. Interest income on loans is accrued by the simple interest method. Loans are generally placed on nonaccrual status when the borrowers are past due greater than ninety days or when full payment of principal and interest is not expected. When a loan is classified as nonaccrual, interest accruals discontinue and all past due interest remains accrued until the loan becomes current, is paid off or is foreclosed upon. Interest accruals are resumed on such loans only when they are brought fully current with respect to interest and principal and when, in the judgment of management, the loans are estimated to b e fully collectible as to both principal and interest. Cash receipts on nonaccrual loans are recorded as interest income, except when such payments are specifically designated as principal reduction or when management does not believe the Partnership’s investment in the loan is fully recoverable.
Allowance for Loan Losses
The allowance for loan losses is established through a provision charged to earnings. Loan losses are charged against the allowance when management believes the uncollectability of a loan balance is confirmed. Subsequent recoveries, if any, are credited to the allowance.
The allowance for loan losses is evaluated on a regular basis by management and is based upon management’s periodic review of the collectability of the loans in light of historical experience, the types and dollar amounts of loans in the portfolio, adverse situations that may affect the borrower’s ability to repay, estimated value of any underlying collateral and prevailing economic conditions. This evaluation is inherently subjective as it requires estimates that are susceptible to significant revision as more information becomes available.
The allowance consists of specific and general components. For the specific component, an allowance is established on an impaired loan when the probable ultimate recovery of the carrying amount of a loan is less than amounts due according to the contractual terms of the loan agreement. The carrying amount of the loan is reduced to the present value of future cash flows discounted at the loan’s effective interest rate. If a loan is collateral dependent, it is valued by management at the estimated fair value of the related collateral, less estimated selling costs. Estimated collateral values are determined based on third party appraisals, broker price opinions, comparable property sales or other indications of value. The general component covers non-classified loans and is based on historical loss experience adjusted for qu alitative factors.
A loan is considered impaired when, based on current information and events, it is probable that the Partnership will be unable to collect all amounts due, including principal and interest, according to the contractual terms of the loan agreement or when monthly payments are delinquent greater than 90 days. Impairment is measured on a loan by loan basis by either the present value of expected future cash flows discounted at the loan’s effective interest rate or the fair value of the underlying collateral, if collateral dependent.
Real Estate Held for Sale and Investment
Real estate held for sale includes real estate acquired through foreclosure and is initially stated at the property’s estimated fair value, less estimated costs to sell.
Depreciation of real estate properties held for investment is provided on the straight-line method over the estimated remaining useful lives of buildings and improvements (5-39 years). Depreciation of tenant improvements is provided on the straight-line method over the lives of the assets or the related leases, whichever is shorter. Costs related to the improvement of real estate held for sale and investment are capitalized, whereas those costs related to holding the property are expensed.
The Partnership periodically compares the carrying value of real estate held for investment to expected future cash flows as determined by internally or third party generated valuations for the purpose of assessing the recoverability of the recorded amounts. If the carrying value exceeds future undiscounted cash flows, the assets are reduced to fair value.
9
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The Partnership reclassifies real estate properties from held for investment to held for sale in the period in which all of the following criteria are met: 1) Management commits to a plan to sell the property; 2) The property is available for immediate sale in its present condition; 3) An active program to locate a buyer has been initiated; 4) The sale of the property is probable and the transfer of the property is expected to qualify for recognition as a completed sale, within one year; and 5) Actions required to complete the plan indicate it is unlikely that significant changes to the plan will be made or the plan will be withdrawn.
If circumstances arise that previously were considered unlikely, and, as a result, the Partnership decides not to sell a real estate property classified as held for sale, the property is reclassified to held for investment. The property is then measured individually at the lower of its carrying amount, adjusted for depreciation or amortization expense that would have been recognized had the property been continuously classified as held for investment, or its fair value at the date of the subsequent decision not to sell.
Recently Adopted Accounting Standards
ASU No. 2010-06
In January 2010, the FASB issued ASU No. 2010-06, “Fair Value Measurements and Disclosures (Topic 820) – Improving Disclosures about Fair Value Measurements.” This ASU requires new disclosures with respect to transfers in and out of Levels 1 and 2 and that Level 3 fair value measurements present separately information about purchases, sales, issuances and settlements (on a gross basis). In addition, the ASU requires reporting entities to provide fair value measurement disclosures for each class of assets and liabilities and the valuation techniques and inputs used to measure fair value for both recurring and nonrecurring fair value measurements. The ASU is effective for interim and annual reporting periods beginning after December 15, 2009 (except certain disclosur es about Level 3 activity which is effective in fiscal years beginning after December 15, 2010). The implementation of this ASU did not have a material impact on the Partnership’s fair value disclosures.
Recently Issued Accounting Standards
ASU No. 2010-20
In July 2010, the FASB issued ASU No. 2010-10, “Receivables (Topic 310) – Disclosures about the Credit Quality of Financing Receivables and the Allowance for Credit Losses.” The amendments in this ASU require an entity to provide a greater level of disaggregated information about the credit quality of its financing receivables and its allowance for credit losses. In addition, the amendments require an entity to disclose credit quality indicators, past due information, and modifications of its financing receivables. The ASU is effective for interim and annual reporting periods beginning on or after December 15, 2010. The implementation of this ASU will require significant new disclosures in the notes to the Partnership’s consolidated financial statements.
10
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 2 - LOANS SECURED BY TRUST DEEDS AND ALLOWANCE FOR LOAN LOSSES
Loans secured by trust deeds as of September 30, 2010 and December 31, 2009 are as follows:
| 2010 | 2009 | ||||||
| By Property Type: | |||||||
| Commercial | $ | 83,743,860 | $ | 100,400,765 | |||
| Condominiums | 52,637,978 | 59,470,752 | |||||
| Apartments | 4,325,000 | 4,325,000 | |||||
| Single family homes (1-4 units) | 325,125 | 327,127 | |||||
| Improved and unimproved land | 47,277,912 | 47,260,116 | |||||
| $ | 188,309,875 | $ | 211,783,760 | ||||
| By Deed Order: | |||||||
| First mortgages | $ | 166,389,081 | $ | 189,642,783 | |||
| Second and third mortgages | 21,920,794 | 22,140,977 | |||||
| $ | 188,309,875 | $ | 211,783,760 | ||||
The Partnership’s loan portfolio above includes Construction Loans and Rehabilitation Loans. Construction Loans are determined by the General Partner to be those loans made to borrowers for the construction of entirely new structures or dwellings, whether residential, commercial or multifamily properties. The General Partner has approved the borrowers up to a maximum loan balance; however, disbursements are made in phases throughout the construction process. As of September 30, 2010 and December 31, 2009, the Partnership held Construction Loans totaling approximately $0 and $7,781,000, respectively, and had commitments to disburse an additional $0 and $13,000, respectively, on Construction Loans.
The Partnership also makes loans, the proceeds of which are used to remodel, add to and/or rehabilitate an existing structure or dwelling, whether residential, commercial or multifamily properties, or are used to complete improvements to land. The General Partner has determined that these are not Construction Loans. These loans are referred to as Rehabilitation Loans. As of September 30, 2010 and December 31, 2009, the Partnership held Rehabilitation Loans totaling approximately $11,281,000 and $53,178,000, respectively, and had commitments to disburse an additional $200,000 and $655,000, respectively, on Rehabilitation Loans. Certain loans that were previously classified as Rehabilitation Loans were removed from this classification during the nine months ending September 30, 2010 because rehabilitation has been com pleted and/or all remaining holdback funds have been disbursed to the borrowers. All Rehabilitation Loans are categorized within Condominiums as of September 30, 2010.
Scheduled maturities of loans secured by trust deeds as of September 30, 2010 and the interest rate sensitivity of such loans are as follows:
| Fixed | Variable | |||||||||
| Interest | Interest | |||||||||
| Rate | Rate | Total | ||||||||
| Year ending September 30: | ||||||||||
| 2010 (past maturity) | $ | 149,395,701 | $ | — | $ | 149,395,701 | ||||
| 2011 | 8,915,913 | — | 8,915,913 | |||||||
| 2012 | 13,820,060 | — | 13,820,060 | |||||||
| 2013 | — | 2,000,000 | 2,000,000 | |||||||
| 2014 | — | 9,000,000 | 9,000,000 | |||||||
| Thereafter (through 2017) | 75,125 | 5,103,076 | 5,178,201 | |||||||
| $ | 172,206,799 | $ | 16,103,076 | $ | 188,309,875 | |||||
11
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Variable rate loans use as indices the one-year, five-year and 10-year Treasury Constant Maturity Index (0.27%, 1.27% and 2.53%, respectively, as of September 30, 2010), the prime rate (3.25% as of September 30, 2010) or the weighted average cost of funds index for Eleventh District savings institutions (1.66% as of September 30, 2010) or include terms whereby the interest rate is adjusted at a specific later date. Premiums over these indices have varied from 0.25% to 0.65% depending upon market conditions at the time the loan is made.
The following is a schedule by geographic location of loans secured by trust deeds as of September 30, 2010 and December 31, 2009:
| September 30, 2010 | Portfolio | December 31, 2009 | Portfolio | ||||||||
| Balance | Percentage | Balance | Percentage | ||||||||
| Arizona | $ | 7,535,000 | 4.00% | $ | 16,804,823 | 7.93% | |||||
| California | 104,295,754 | 55.38% | 111,462,827 | 52.64% | |||||||
| Colorado | 15,828,102 | 8.41% | 15,810,305 | 7.47% | |||||||
| Florida | 26,257,121 | 13.94% | 26,257,122 | 12.40% | |||||||
| Hawaii | 2,000,000 | 1.06% | — | — | |||||||
| Idaho | 2,200,000 | 1.17% | 2,200,000 | 1.04% | |||||||
| Nevada | 5,409,650 | 2.87% | 7,909,650 | 3.73% | |||||||
| New York | 10,500,000 | 5.58% | 10,500,000 | 4.96% | |||||||
| Oregon | 75,125 | 0.04% | 77,127 | 0.04% | |||||||
| Pennsylvania | 1,922,003 | 1.02% | 1,320,057 | 0.62% | |||||||
| Texas | 2,635,000 | 1.40% | 2,635,000 | 1.24% | |||||||
| Utah | 3,745,857 | 1.99% | 3,943,216 | 1.86% | |||||||
| Washington | 5,906,263 | 3.14% | 12,863,633 | 6.07% | |||||||
| $ | 188,309,875 | 100.00% | $ | 211,783,760 | 100.00% | ||||||
As of September 30, 2010 and December 31, 2009, the Partnership’s loans secured by deeds of trust on real property collateral located in Northern California totaled approximately 45% ($84,541,000) and 43% ($91,708,000), respectively, of the loan portfolio. The Northern California region (which includes Monterey, Fresno, Kings, Tulare and Inyo counties and all counties north) is a large geographic area which has a diversified economic base. The ability of borrowers to repay loans is influenced by the economic strength of the region and the impact of prevailing market conditions on the value of real estate. In addition, as of September 30, 2010 approximately 76% of the Partnership’s mortgage loans were secured by real estate located in the states of California, Arizona, Florida and Nevada, which have experienced dramatic re ductions in real estate values over the past three years.
During the nine months ended September 30, 2010, the Partnership extended to December 31, 2011 the maturity date of one loan with a principal balance of $800,000. During the three months ended September 30, 2009, the Partnership extended the maturity dates of one loan on a short-term basis (less than two years) with a principal balance of approximately $2,406,000. Subsequent to September 30, 2010, two past maturity loans with aggregate principal balances totaling $600,000 had the maturity dates extended by three years to September 2013.
As of September 30, 2010 and December 31, 2009, approximately $178,057,000 (94.6 %) and $201,403,000 (95.1%) of Partnership loans are interest-only and require the borrower to make a “balloon payment” on the principal amount upon maturity of the loan. To the extent that a borrower has an obligation to pay mortgage loan principal in a large lump sum payment, its ability to satisfy this obligation may be dependent upon its ability to sell the property, obtain suitable refinancing or otherwise raise a substantial cash amount. As a result, these loans involve a higher risk of default than fully amortizing loans. Borrowers occasionally are not able to pay the full amount due at the maturity date. The Partnership may allow these borrowers to continue making the regularly scheduled monthly interest payments for certain per iods of time to assist the borrower in meeting the balloon payment obligation without formally filing a notice of default. These loans for which the principal is due and payable, but the borrower has failed to make such payment of principal are referred to as “past maturity loans”. As of September 30, 2010 and December 31, 2009, the Partnership had thirty-three and thirty-seven past maturity loans totaling approximately $149,396,000 and $164,569,000, respectively.
12
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
As of September 30, 2010 and December 31, 2009, the Partnership had twenty-eight and thirty impaired loans, respectively, that were delinquent in monthly payments greater than ninety days and/or in the process of foreclosure totaling approximately $145,324,000 (77%) and $146,039,000 (69%), respectively. This included twenty-six and twenty-eight past maturity loans totaling $142,843,000 (76%) and $142,277,000 (67%), respectively. In addition, eight and nine loans totaling approximately $6,553,000 (4%) and $22,292,000 (11%), respectively, were past maturity but current in monthly payments as of September 30, 2010 and December 31, 2009, respectively (combined total of impaired and past maturity loans of $151,877,000 (81%) and $168,331,000 (80%), respectively). Of the impaired and past maturity loans, approximately $61,691,000 (33% ) and $61,859,000 (29%), respectively, were in the process of foreclosure and $61,677,000 (33%) and $29,278,000 (14%), respectively, involved borrowers who were in bankruptcy as of September 30, 2010 and December 31, 2009.
The Partnership foreclosed on six and five loans during the nine months ended September 30, 2010 and 2009, respectively, with aggregate principal balances totaling $20,249,000 and $18,576,000, respectively, and obtained the properties via the trustee’s sales. Subsequent to quarter end, the Partnership foreclosed on three loans with aggregate principal balances to the Partnership totaling approximately $30,582,000 ($20,451,000 net of specific loan loss allowances) and obtained the properties via the trustee’s sales.
During 2007, the Partnership funded a $30,000,000 portion of a $75,200,000 mortgage loan and entered into a Co-Lending and Servicing Agent Agreement (the “Agreement”) with three other co-lenders in the loan. The loan is secured by a condominium complex located in Miami, Florida consisting of three buildings, two of which have been renovated and in which 168 units remain unsold (the “Point” and “South” buildings) and one which contains 160 units that have not been renovated (the “North” building). The General Partner is also a co-lender in the subject loan and is party to the Agreement. The interest rate payable to the Partnership and the General Partner on the loan is 10% per annum. Pursuant to the Agreement, the Partnership and the General Partner, as senior co-lenders, have prio rity on a pro-rata basis over all other co-lenders in such loan as follows: After any protective advances made are reimbursed to the co-lenders on a pro-rata basis, the Partnership and General Partner shall receive their share of interest in the loan prior to the mezzanine and junior co-lenders and, once all interest has been paid to the co-lenders, the Partnership and General Partner shall receive their share of principal in the loan prior to the mezzanine and junior co-lenders in the loan. The servicer of the loan was an affiliate of the junior co-lender (the “Servicing Agent”). As of September 30, 2010, the Partnership had funded $1,540,000 of its pro-rata share of unreimbursed protective advances and funded an additional $11,000 subsequent to quarter end. In addition, the Partnership received reimbursement of protective advances of $209,000 subsequent to quarter end. As of September 30, 2010 and December 31, 2009, the Partnership’s and General Partner’s remaining principal balance in the subject loan was approximately $23,483,000 and $7,828,000, respectively.
During 2008, the Servicing Agent filed a notice of default on this loan. During 2009, the Partnership purchased the junior lender’s investment in the loan (including principal of $7,200,000, accrued interest of approximately $1,618,000 and protective advances of approximately $535,000) for $2,800,000 ($2,775,000 outstanding as of September 30, 2010). The Partnership and the General Partner assumed the duties of the Servicing Agent effective June 1, 2009. The Partnership recorded a specific loan loss allowance on this loan of approximately $10,039,000 and $9,945,000 as of September 30, 2010 and December 31, 2009, respectively. In November 2010, the Partnership and the General Partner, as Servicing Agent, foreclosed on this loan and obtained the properties via the trustee’s sale. The properties will be placed into a new limited liability company to be owned and operated by the remaining co-lenders in the loan. The foreclosure sale will result in a tax loss to the partners in 2010 in the approximate amount of the loan loss allowance at September 30, 2010 ($10,039,000).
13
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The average recorded investment in impaired loans (including loans delinquent in payments greater than 90 days) was approximately $152,560,000 and $125,176,000 as of September 30, 2010 and 2009, respectively. Interest income recognized on impaired loans totaled approximately $816,000 and $313,000 for the three months ended September 30, 2010 and 2009, respectively, and $2,275,000 and $1,447,000 for the nine months ended September 30, 2010 and 2009, respectively. Interest income received on impaired loans totaled approximately $918,000 and $513,000 for the three months ended September 30, 2010 and 2009, respectively, and $3,002,000 and $1,707,000 for the nine months ended September 30, 2010 and 2009, respectively.
The Partnership’s allowance for loan losses was $23,318,161 and $28,392,938 as of September 30, 2010 and December 31, 2009, respectively. As of September 30, 2010 and December 31, 2009, there was a general allowance for loan losses of $4,349,000 and $5,645,000, respectively, and a specific allowance for loan losses on twelve and ten loans in the total amount of $18,969,161 and $22,747,938, respectively.
The composition of the specific allowance for loan losses as of September 30, 2010 and December 31, 2009 was as follows:
| September 30, 2010 | December 31, 2009 | ||||||||||||
| Amount | Percent | Amount | Percent | ||||||||||
| Commercial | $ | 4,182,123 | 22.1 | % | $ | 8,770,254 | 38.6 | % | |||||
| Condominiums | 14,666,211 | 77.3 | % | 13,977,684 | 61.4 | % | |||||||
| Apartments | 92,591 | 0.5 | % | — | — | % | |||||||
| Land | 28,236 | 0.1 | % | — | — | % | |||||||
| Total | $ | 18,969,161 | 100.0 | % | $ | 22,747,938 | 100.0 | % | |||||
Changes in the allowance for loan losses, including both specific and general allowances, for the three and nine months ended September 30, 2010 and 2009 were as follows:
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||
| 2010 | 2009 | 2010 | 2009 | ||||||||||
| Balance, beginning of period | $ | 25,118,880 | $ | 22,463,118 | $ | 28,392,938 | $ | 13,727,634 | |||||
| Provision | (1,223,936 | ) | 2,309,206 | 623,812 | 13,429,151 | ||||||||
| Recovery of bad debts | — | — | — | — | |||||||||
| Charge-offs | (576,783 | ) | — | (5,698,589 | ) | (2,384,461 | ) | ||||||
| Balance, end of period | $ | 23,318,161 | $ | 24,772,324 | $ | 23,318,161 | $ | 24,772,324 | |||||
The General Partner believes that the allowance for estimated loan losses is management’s best estimate of inherent losses in the loan portfolio as of September 30, 2010. The allowance for loan losses is evaluated on a regular basis by management and is based upon management’s periodic review of the collectability of the loans in light of historical experience, the nature and volume of the loan portfolio, adverse situations that may affect the borrower’s ability to repay, estimated value of any underlying collateral and prevailing economic conditions. This evaluation is inherently subjective as it requires estimates that are susceptible to significant revision as more information becomes available. Impairment is measured on a loan by loan basis by either the present value of expected future cash flows discounted at the l oan’s effective interest rate, the loan’s obtainable market price, or the fair value of the underlying collateral.
14
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 3 – INVESTMENT IN LIMITED LIABILITY COMPANY
During 2008, the Partnership entered into an Operating Agreement of 1850 De La Cruz LLC, a California limited liability company (“1850”), with Nanook Ventures LLC (“Nanook”), an unrelated party. The purpose of the joint venture is to acquire, own and operate certain industrial land and buildings located in Santa Clara, California that was owned by the Partnership. The property was subject to a Purchase and Sale Agreement dated July 24, 2007 (the “Sale Agreement”), as amended, between the Partnership, as seller, and Nanook, as buyer. During the course of due diligence under the Sale Agreement, it was discovered that the property is contaminated and that remediation and monitoring may be required. The parties agreed to enter into the Operating Agreement to restructure the arrangement as a joint venture. At the time of closing in July 2008, the two properties were separately contributed to two new limited liability companies, Nanook Ventures One LLC and Nanook Ventures Two LLC that are wholly owned by 1850. The Partnership and Nanook are the Members of 1850 and NV Manager, LLC is the Manager.
Pursuant to the Operating Agreement, the Partnership is responsible for all costs related to the environmental remediation on the properties and has indemnified Nanook against all obligations related to the contamination. During 2008, the Partnership accrued approximately $762,000 as an estimate of the expected costs to monitor and remediate the contamination on the properties based on a third party consultant’s estimate. As of September 30, 2010 and December 31, 2009, approximately $568,000 and $579,000, respectively, of this obligation remains accrued on the Partnership’s books. The Partnership has estimated the amount to be paid under this guarantee based on the information available at this time. If additional amounts are required to monitor and remediate the contamination, it will be an obligation of the Partnership, as t he Operating Agreement does not limit the obligations of the Partnership.
The Partnership received capital distributions from 1850 of approximately $65,000 and $112,000 during the nine months ended September 30, 2010 and 2009, respectively. The net income to the Partnership from its investment in 1850 was approximately $38,000 and $36,000 during the three months ended September 30, 2010 and 2009, respectively, and $111,000 and $104,000 during the nine months ended September 30, 2010 and 2009, respectively.
NOTE 4 - REAL ESTATE HELD FOR SALE
Real estate properties held for sale as of September 30, 2010 and December 31, 2009 consists of the following properties acquired through foreclosure:
| 2010 | 2009 | ||||||
| Manufactured home subdivision development, Ione, California | $ | 455,179 | $ | 549,132 | |||
| Commercial building, Roseville, California | 204,804 | 380,924 | |||||
| Two improved residential lots, West Sacramento, California | 510,944 | 510,944 | |||||
| Office/retail complex, Hilo, Hawaii | — | 1,666,121 | |||||
| Office condominium complex (16 units), Roseville, California | 7,312,518 | 7,745,153 | |||||
| Commercial building, Sacramento, California | 3,890,967 | — | |||||
| $ | 12,374,412 | $ | 10,852,274 | ||||
15
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
During the quarter ended September 30, 2010, the Partnership sold the office/retail complex located in Hilo, Hawaii for cash of $500,000 and a note in the amount of $2,000,000, resulting in a gain to the Partnership of approximately $805,000. Approximately $161,000 of this amount was recorded as current gain to the Partnership and the remaining $644,000 was deferred and will be recognized as principal payments are received on the loan under the installment method. The note is interest only and bears interest at the rate of 6.25% per annum for the first year, adjusts to 7.25% beginning July 1, 2011 and then 8.25% beginning July 1, 2012. The note matures on June 30, 2013. The net income (loss) to the Partnership from operation of this property was approximately $126,000 and $(46,000) for the three months ended September 30, 2010 and 2009, respectively, and $48,000 and $(121,000) for the nine months ended September 30, 2010 and 2009, respectively. The 2010 amounts include the gain on sale of the property of approximately $161,000 and have been reported as net income from discontinued operations in the accompanying consolidated statements of income.
During the quarter ended September 30, 2010, the Partnership foreclosed on a first mortgage loan secured by a commercial building located in Sacramento, California in the amount of $3,700,000 and obtained the property via the trustee’s sale. In addition, certain advances made on the loan or incurred as part of the foreclosure in the total amount of approximately $191,000 were capitalized to the basis of the property. The property is classified as held for sale as a sale is expected to be completed in the next one year period.
During the nine months ended September 30, 2009, the Partnership recorded an impairment loss of approximately $72,000 on five lots (four with houses) in the manufactured home subdivision development in Ione, California based on an updated appraisal on one of the houses, which is reflected in losses on real estate properties in the accompanying consolidated statements of income.
During the nine months ended September 30, 2009, the Partnership sold one unit in the office condominium complex located in Roseville, California for net sales proceeds of approximately $468,000, resulting in a gain to the Partnership of approximately $50,000.
16
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 5 - REAL ESTATE HELD FOR INVESTMENT
Real estate held for investment, net of accumulated depreciation, is comprised of the following properties as of September 30, 2010 and December 31, 2009:
| 2010 | 2009 | ||||||
| Light industrial building, Paso Robles, California | $ | 1,553,770 | $ | 1,581,898 | |||
| Commercial buildings, Roseville, California | 623,994 | 636,849 | |||||
| Retail complex, Greeley, Colorado (held within 720 University, LLC) | 12,718,149 | 13,009,843 | |||||
| Undeveloped land, Madera County, California | 1,225,000 | 1,225,000 | |||||
| Manufactured home subdivision development, Lake Charles, Louisiana (held within Dation, LLC) | 2,050,062 | 2,180,780 | |||||
| Undeveloped land, Marysville, California | 594,610 | 594,610 | |||||
| Golf course, Auburn, California (held within DarkHorse Golf Club, LLC) | 2,629,087 | 2,519,036 | |||||
| 75 improved, residential lots, Auburn, California, (held within Baldwin Ranch Subdivision LLC) | 10,950,684 | 10,950,684 | |||||
| Undeveloped land, San Jose, California | 3,025,992 | 3,025,992 | |||||
| Undeveloped land, Half Moon Bay, California | 2,207,214 | 2,175,357 | |||||
| Storage facility, Stockton, California | 5,172,069 | 5,238,981 | |||||
| Undeveloped, residential land, Coolidge, Arizona | 2,099,816 | 2,099,816 | |||||
| Eight townhomes, Santa Barbara, California (held within Anacapa Villas, LLC) | 10,314,890 | 10,566,383 | |||||
| Marina with 30 boat slips and 11 RV spaces, Oakley, California (held within The Last Resort and Marina, LLC) | 462,365 | 470,718 | |||||
Nineteen condominium units, San Diego, California (held within 33rd Street Terrace, LLC) | 1,550,935 | 1,479,380 | |||||
Golf course, Auburn, California (held within Lone Star Golf, LLC) | 2,024,627 | 2,043,718 | |||||
| Industrial building, Sunnyvale, California (held within Wolfe Central, LLC) | 3,359,460 | 3,414,619 | |||||
133 condominium units, Phoenix, Arizona (held within 54th Street Condos, LLC) | 5,748,219 | 5,822,598 | |||||
| Medical office condominium complex, Gilbert, Arizona (held within AMFU, LLC) | 5,010,939 | — | |||||
| 60 condominium units, Lakewood, Washington (held within Phillips Road, LLC) | 6,584,800 | — | |||||
| $ | 79,906,682 | $ | 69,036,262 | ||||
17
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The balances of land and the major classes of depreciable property for real estate held for investment as of September 30, 2010 and December 31, 2009 are as follows:
| 2010 | 2009 | |||||||
| Land and land improvements | $ | 37,366,036 | $ | 35,112,002 | ||||
| Buildings | 41,734,894 | 32,358,648 | ||||||
| Improvements | 6,296,708 | 5,936,153 | ||||||
| Other | 20,525 | 17,925 | ||||||
| 85,418,163 | 73,424,728 | |||||||
| Less: Accumulated depreciation | (5,511,481 | ) | (4,388,466 | ) | ||||
| $ | 79,906,682 | $ | 69,036,262 | |||||
The acquisition of certain real estate properties through foreclosure (including real estate held for sale – see Note 4) resulted in the following non-cash activity for the nine months ended September 30, 2010 and 2009, respectively:
| 2010 | 2009 | |||||||
| Increases: | ||||||||
| Real estate held for investment | $ | 15,547,849 | $ | 16,611,437 | ||||
| Vehicles, equipment and furniture | — | 80,000 | ||||||
| Other assets | — | 21,192 | ||||||
| Accounts payable and accrued liabilities | — | (8,725 | ) | |||||
| Decreases: | ||||||||
| Loans secured by trust deeds, net of allowance for loan losses | (14,684,238 | ) | (16,191,441 | ) | ||||
| Interest and other receivables | (863,611 | ) | (512,463 | ) | ||||
It is the Partnership’s intent to sell the majority of its real estate properties held for investment, but expected sales are not probable to occur within the next year.
Depreciation expense was approximately $451,000 and $286,000 for the three months ended September 30, 2010 and 2009, respectively, and $1,286,000 and $782,000 for the nine months ended September 30, 2010 and 2009, respectively.
During the quarter ended September 30, 2010, the Partnership obtained a deed in lieu of foreclosure from the borrower on four first mortgage loans secured by 60 converted condominium units in a complex located in Lakewood, Washington in the aggregate amount of approximately $6,957,000 and obtained the property. It was determined that the fair value of the property was lower than the Partnership’s investment in the loans and a specific loan allowance was established of approximately $573,000 as of June 30, 2010. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure, along with an additional charge to bad debt expense of approximately $4,000. The property is classified as held for investment as a sale is not expected in the next one year period. The Partnership formed a new, who lly-owned limited liability company, Phillips Road, LLC, to own and operate the complex.
During the nine months ended September 30, 2010, the Partnership obtained a deed in lieu of foreclosure from the borrower on a first mortgage loan secured by a medical office condominium complex located in Gilbert, Arizona in the amount of approximately $9,592,000 and obtained the property. It was determined that the fair value of the property was lower than the Partnership’s investment in the loan and a specific loan allowance was established for this loan in the total amount of approximately $4,914,000 as of March 31, 2010. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in May 2010, along with an additional charge to bad debt expense of approximately $74,000 for additional delinquent property taxes paid. The property is classified as held for investment as a sale is not expected to be completed in the next one year period. The Partnership formed a new, wholly-owned limited liability company, AMFU, LLC, to own and operate the complex.
18
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
During the nine months ended September 30, 2009, the Partnership recorded an impairment loss of approximately $284,000 on the storage facility located in Stockton, California based on an updated appraisal, which is reflected in losses on real estate properties in the accompanying consolidated statements of operations.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by a golf course located in Auburn, California in the amount of $4,000,000 and obtained the property via the trustee’s sale. As of December 31, 2008, it was determined that the fair value of the property was lower than the Partnership’s investment in the loan and a specific loan allowance was established for this loan in the total amount of approximately $2,090,000 as of March 31, 2009. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in June 2009, along with an additional charge to bad debt expense of approximately $53,000 for additional delinquent property taxes. The Partnership formed a new, wholly-owned limited liability company, Lone Star Golf , LLC (see below), to own and operate the golf course.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by 19 converted units in a condominium complex located in San Diego, California in the amount of approximately $1,411,000 and obtained the property via the trustee’s sale. In addition, accrued interest income and certain advances made on the loan or incurred as part of the foreclosure (such as delinquent property taxes) in the total amount of approximately $88,000 were capitalized to the basis of the property.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by undeveloped residential land located in Coolidge, Arizona in the amount of $2,000,000 and obtained the property via the trustee’s sale. In addition, accrued interest income and certain advances made on the loan or incurred as part of the foreclosure (such as legal fees and delinquent property taxes) in the total amount of approximately $99,000 were capitalized to the basis of the property.
During the nine months ended September 30, 2009, the Partnership foreclosed on two first mortgage loans secured by eight luxury townhomes located in Santa Barbara, California in the amount of $10,500,000 and obtained the property via the trustee’s sale. In addition, certain advances made on the loan or incurred as part of the foreclosure (such as legal fees and delinquent property taxes) in the total amount of approximately $432,000 were capitalized to the basis of the property. The Partnership formed a new, wholly-owned limited liability company, Anacapa Villas, LLC (see below), to own and operate the townhomes.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by a marina with 30 boat slips and 11 RV spaces located in Oakley, California in the amount of $665,000 and obtained the property via the trustee’s sale. As of December 31, 2008, it was determined that the fair value of the property was lower than the Partnership’s investment in the loan by approximately $242,000, and, thus, a specific loan allowance was established for this loan. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in March 2009. The Partnership formed a new, wholly-owned limited liability company, The Last Resort and Marina, LLC (see below), to own and operate the marina.
720 University, LLC
The Partnership has an investment in a limited liability company, 720 University, LLC (720 University), which owns a commercial retail property located in Greeley, Colorado. The Partnership receives 65% of the profits and losses in 720 University after priority return on partner contributions is allocated at the rate of 10% per annum. The assets, liabilities, income and expenses of 720 University have been consolidated into the accompanying consolidated balance sheet and statement of operations of the Partnership.
19
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The net (loss) income to the Partnership from 720 University was approximately $(20,000) and $83,000 (including depreciation and amortization of $121,000 and $137,000) for the three months ended September 30, 2010 and 2009, respectively, and $14,000 and $100,000 (including deprecation and amortization of $396,000 and $414,000) for the nine months ended September 30, 2010 and 2009, respectively. The non-controlling interest of the joint venture partner of approximately $20,000 and $35,000 as of September 30, 2010 and December 31, 2009, respectively, is reported in the accompanying consolidated balance sheets. The Partnership’s investment in 720 University property and improvements was approximately $12,718,000 and $13,010,000 as of September 30, 2010 and December 31, 2009, respectively.
Dation, LLC
Dation, LLC (Dation) was formed in 2001 between the Partnership and an unrelated developer for the purpose of developing and selling lots in a manufactured home subdivision development located in Lake Charles, Louisiana, which were acquired by the Partnership via a deed in lieu of foreclosure. The Partnership advances funds to Dation as needed. The Partnership owns 50% of Dation and is the sole general manager of Dation. Pursuant to the Operating Agreement, the Partnership is to receive 50% of Dation’s profits and losses after receipt of all interest on the original loan and priority return on partner contributions allocated at the rate of 12% per annum. The Partnership has recorded 100% of Dation’s net income and losses since inception because it has the majority of the risks and rewards of ownership. The assets, liabilities, income and expenses of Dation have been consolidated into the accompanying consolidated balance sheet and statement of operations of the Partnership.
The Partnership advanced an additional $0 and $226,000 in capital contributions to Dation during the nine months ended September 30, 2010 and 2009, respectively, for manufactured home purchases and related improvements. The Partnership received repayment of capital contributions of $84,000 during the nine months ended September 30, 2010.
The net loss to the Partnership from Dation was approximately $13,000 for the three months ended September 30, 2010 and 2009, and $39,000 and $21,000 for the nine months ended September 30, 2010 and 2009, respectively.
DarkHorse Golf Club, LLC
DarkHorse Golf Club, LLC (DarkHorse) is a California limited liability company formed in August 2007 for the purpose of operating the DarkHorse golf course located in Auburn, California, which was acquired by the Partnership via foreclosure in August 2007. The golf course was placed into DarkHorse via a grant deed on the same day that the trustee’s sale was held. The Partnership is the sole member in DarkHorse. The assets, liabilities, income and expenses of DarkHorse have been consolidated into the accompanying consolidated balance sheet and statement of operations of the Partnership. The golf course is being operated and managed by an unrelated company.
The Partnership advanced approximately $93,000 and $33,000 to DarkHorse during the three months ended September 30, 2010 and 2009, respectively, and $342,000 and $208,000 during the nine months ended September 30, 2010 and 2009, respectively, for operations and equipment purchases.
The net loss to the Partnership from DarkHorse was approximately $40,000 and $106,000 (including depreciation of $30,000 and $40,000) for the three months ended September 30, 2010 and 2009, respectively, and $347,000 and $419,000 (including depreciation of $93,000 and $117,000) for the nine months ended September 30, 2010 and 2009, respectively. Continued operation of DarkHorse may result in additional losses to the Partnership and may require the Partnership to provide funds for operations and capital improvements.
20
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Lone Star Golf, LLC
Lone Star Golf, LLC (Lone Star) is a California limited liability company formed in June 2009 for the purpose of owning and operating a golf course and country club located in Auburn, California, which was acquired by the Partnership via foreclosure in June 2009. The Partnership is the sole member in Lone Star. The assets, liabilities, income and expenses of Lone Star have been consolidated into the accompanying consolidated balance sheet and statement of operations of the Partnership. The golf course is being operated and managed by an unrelated company.
The Partnership advanced approximately $171,000 and $166,000 to Lone Star during the nine months ended September 30, 2010 and 2009, respectively. The net (loss) income to the Partnership from Lone Star was approximately $(71,000) and $(24,000) (including depreciation of $11,000 and $13,000) for the three months ended September 30, 2010 and 2009, respectively, and $(176,000) and $4,000 (including depreciation of $33,000 and $16,000) for the nine months ended September 30, 2010 and 2009, respectively.
The approximate net income (loss) from Partnership real estate properties held within wholly-owned limited liability companies and other investment properties with significant operating results, for the nine months ended September 30, 2010 and 2009 were as follows:
| 2010 | 2009 | ||||||
| Anacapa Villas, LLC | $ | (163,000 | ) | $ | (221,000 | ) | |
| Baldwin Ranch Subdivision, LLC | (120,000 | ) | (108,000 | ) | |||
| The Last Resort and Marina, LLC | (19,000 | ) | (44,000 | ) | |||
33rd Street Terrace, LLC | 14,000 | 3,000 | |||||
54th Street Condos, LLC | (311,000 | ) | — | ||||
| Wolfe Central, LLC | 285,000 | — | |||||
| AMFU, LLC | (41,000 | ) | — | ||||
| Phillips Road, LLC | (21,315 | ) | — | ||||
| Light industrial building, Paso Robles, California | 172,000 | 293,000 | |||||
| Undeveloped land, San Jose, California | (104,000 | ) | (76,000 | ) | |||
| Storage facility, Stockton, California | 59,000 | 42,000 | |||||
NOTE 6 - TRANSACTIONS WITH AFFILIATES
In consideration of the management services rendered to the Partnership, Owens Financial Group, Inc. (“OFG”), the General Partner, is entitled to receive from the Partnership a management fee payable monthly, subject to a maximum of 2.75% per annum of the average unpaid balance of the Partnership’s mortgage loans.
All of the Partnership’s loans are serviced by OFG, in consideration for which OFG receives up to 0.25% per annum of the unpaid principal balance of the loans.
OFG, at its sole discretion may, on a monthly basis, adjust the management and servicing fees as long as they do not exceed the allowable limits calculated on an annual basis. Even though the fees for a month may exceed 1/12 of the maximum limits, at the end of the calendar year the sum of the fees collected for each of the 12 months must be equal to or less than the stated limits. Management fees amounted to approximately $658,000 and $624,000 for the three months ended September 30, 2010 and 2009, respectively, and $1,713,000 and $1,645,000, for the nine months ended September 30, 2010 and 2009, respectively. Servicing fees amounted to approximately $122,000 and $153,000 for the three m onths ended September 30, 2010 and 2009, respectively, and $382,000 and $474,000 for the nine months ended September 30, 2010 and 2009, respectively. As of September 30, 2010 and December 31, 2009, the Partnership owed management and servicing fees to OFG in the amount of approximately $407,000 and $362,000, respectively.
21
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The maximum servicing fees were paid to the General Partner during the three and nine months ended September 30, 2010 and 2009. If the maximum management fees had been paid to the General Partner during the three and nine months ended September 30, 2010, the management fees would have been $1,339,000 (increase of $681,000) and $4,197,000 (increase of $2,483,000), respectively, which would have decreased net income allocated to limited partners by approximately 38% and 317%, respectively, and net income allocated to limited partners per weighted average limited partner unit by the same percentages to income (loss) of $.005 and $(.007), respectively, from income of $.007 and $.003, respectively. If the maximum management fees had been paid to the General Partner during the three and nine months ended September 30, 2009, the manag ement fees would have been $1,682,000 (increase of $1,059,000) and $5,209,000 (increase of $3,563,000), respectively, which would have increased net loss allocated to limited partners by approximately 117% and 52%, respectively, and net loss allocated to limited partners per weighted average limited partner unit by the same percentages to a loss of $.008 and $.04, respectively, from a loss of $.004 and $.03, respectively.
In determining the yield to the partners and hence the management fees, OFG may consider a number of factors, including current market yields, delinquency experience, un-invested cash and real estate activities. OFG expects that the management fees it receives from the Partnership will vary in amount and percentage from period to period, and it is highly likely that OFG will again receive less than the maximum management fees in the future. However, if OFG chooses to take the maximum allowable management fees in the future, the yield paid to limited partners may be reduced.
Pursuant to the Partnership Agreement, OFG receives all late payment charges from borrowers on loans owned by the Partnership, with the exception of loans participated with outside entities. The amounts paid to or collected by OFG for such charges totaled approximately $2,000 and $5,000 for the three months ended September 30, 2010 and 2009, respectively, and $129,000 and $25,000 for the nine months ended September 30, 2010 and 2009, respectively. In addition, the Partnership remits other miscellaneous fees to OFG, which are collected from loan payments, loan payoffs or advances from loan principal (i.e. funding, demand and partial release fees). Such fees remitted to OFG totaled approximately $3,000 and $9,000 for the three months ended September 30, 2010 and 2009, respectively, and $10,000 and $19,000 for the nine months ended September 30, 2010 and 2009, respectively.
OFG originates all loans the Partnership invests in and receives loan origination fees from borrowers. Such fees earned by OFG amounted to approximately $0 and $72,000 on loans originated or extended of approximately $0 and $2,406,000 for the three months ended September 30, 2010 and 2009, respectively, and $32,000 and $1,065,000 on loans originated or extended of approximately $800,000 and $25,691,000 for the nine months ended September 30, 2010 and 2009, respectively. Of the $1,065,000 in loan origination fees earned by OFG during the nine months ended September 30, 2009, $633,000 were back-end fees that will not be collected by OFG until the related loans are paid in full.
OFG is reimbursed by the Partnership for the actual cost of goods and materials used for or by the Partnership and obtained from unaffiliated entities and the actual cost of services of non-management and non-supervisory personnel related to the administration of the Partnership (subject to certain limitations in the Partnership Agreement). The amounts reimbursed to OFG by the Partnership during the three months ended September 30, 2010 and 2009 were $16,000 and $15,000, respectively, and $47,000 and $48,000 during the nine months ended September 30, 2010 and 2009, respectively.
During 2007, the Partnership funded a $30,000,000 portion of a $75,200,000 mortgage loan secured by a condominium complex (in the process of conversion and renovation) located in Miami, Florida and entered into a Co-Lending and Servicing Agent Agreement (the “Agreement”) with three other co-lenders in the loan. The General Partner is also a co-lender in the subject loan and is party to the Agreement. See Note 2 for further information about this participated loan.
As of September 30, 2010 and December 31, 2009, the General Partner held second and fourth deeds of trust in the total amount of approximately $853,000 secured by the same property (and to the same borrower) on which the Partnership has a first deed of trust in the amount of $2,200,000 at an interest rate of 12% per annum. Approximately $517,000 of the General Partner’s second deed of trust is an exit fee included in the deed of trust at the time of loan origination in 2006. The interest rate on the General Partner’s loan is 17% per annum. The loans to the Partnership and the General Partner are greater than ninety days delinquent and past maturity as of September 30, 2010.
22
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 7 - NOTES PAYABLE
The Partnership has a note payable with a bank with a principal balance of approximately $10,430,000 and $10,500,000 as of September 30, 2010 and December 31, 2009, respectively, through its investment in 720 University (see Note 5), which is secured by the retail development located in Greeley, Colorado. The note required monthly interest-only payments until March 1, 2010 at a fixed rate of 5.07% per annum. Commencing April 1, 2010, the note became amortizing and monthly payments of $56,816 are now required, with the balance of unpaid principal due on March 1, 2015. Interest expense was approximately $135,000 and $136,000 for the three months ended September 30, 2010 and 2009, respectively, and $403,000 and $404,000 during the nine months ended September 30, 2010 and 2009, respectively. The note contains certain covenants, whi ch the Company has complied with as of September 30, 2010.
NOTE 8 - LINE OF CREDIT PAYABLE
The Partnership has a line of credit agreement with a group of banks (the “Lenders”), which provided interim financing on mortgage loans invested in by the Partnership. All assets of the Partnership are pledged as security for the line of credit. The line of credit is guaranteed by the General Partner. The line of credit matured by its terms on July 31, 2009. On October 13, 2009, a Modification to Credit Agreement (the “Modification”) was executed by the Partnership and the Lenders whereby the credit line is no longer available for further advances and the maturity date was extended to March 31, 2010. As of the date of this filing, the line of credit has matured and has not been repaid by the Partnership.
Commencing before the extended maturity date of the line of credit, the General Partner sought to negotiate with the Lenders to further extend its maturity until a date by which the Partnership would anticipate having sufficient funds to retire the entire outstanding credit line balance. As a result of the General Partner’s communications with the Lenders, on June 15, 2010, the Agent for the Lenders sent the Partnership a forbearance letter stating that the Partnership’s repayment obligations matured on March 31, 2010. The letter notified the Partnership of the Agent’s intention to forbear through June 30, 2010 in taking legal action on account of the Partnership’s failure to pay all principal and interest at maturity through that date, assuming that there is no further default under the credit agreement. On July 7 , 2010, the Agent for the Lenders sent the Partnership another forbearance letter stating that the Agent intends to further forbear through September 30, 2010 in taking any legal action on account of the Borrower’s failure to pay all principal and interest at maturity, assuming that there is no further default under the credit agreement.
The July 7, 2010 forbearance letter indicates that the Agent’s forbearance is conditioned on the Partnership’s delivery of the Partnership’s forecast regarding repayment of the credit line on or before September 30, 2010, and regular status updates regarding the Partnership’s refinancing and asset sale efforts. However, the letter does not demand any actions by the Partnership regarding the outstanding line of credit balance. The letter disclaims any waiver or modification of the Agent’s or the Lenders’ legal and contractual rights, and expressly reserves such rights. The Partnership has not received from the Agent for the Lenders a forbearance letter or other statement of intention to forbear from taking legal action with respect to the credit line after September 30, 2010.
On October 12, 2010, another Modification to Credit Agreement was executed by the Partnership and the Lenders, containing an acknowledgment of the delinquency of the Partnership’s repayment of the outstanding line of credit balance. This Modification directed the Lenders to remit to the Agent all funds held by the Lenders in the Partnership’s restricted deposit accounts, in the total amount of $1,000,000. Such amount was applied by the Agent to reduce the outstanding balance of the line of credit.
23
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The General Partner’s continuing intention is to cause the Partnership to retire the line of credit as soon as practicable, but there can be no assurance as to when this will occur. If the Agent and the Lenders take action to collect the unpaid principal balance, the Partnership may be required to negotiate with the Lenders regarding an extension. If an acceptable extension is not obtained, the Partnership may be required to refinance its indebtedness with a different institution, potentially on unfavorable terms, or liquidate Partnership investments to repay outstanding borrowings, which may occur at reduced prices and result in losses to the Partnership.
As a result of the Modification, the agent for the Lenders has received collateral assignments of deeds of trusts for current performing note receivables with a value of at least 200% of the credit line’s principal balance. In addition, all net proceeds of real estate property sales by the Partnership and all payments of loan principal received by the Partnership must be applied to the credit line, until it is fully repaid. Additionally, while the Partnership has outstanding borrowings on the credit line, the Modification prevents the Partnership from making capital distributions to partners (including withdrawals), other than distributions of up to a 3% annual return on investment.
The unpaid principal amount on the line of credit now bears interest at an annual rate of 1.50% in excess of the prime rate in effect from time to time (the prime rate was 3.25% as of September 30, 2010), subject to an interest rate floor of 7.50% per annum.
The balance outstanding on the line of credit was approximately $16,376,000 and $23,695,000 as of September 30, 2010 and December 31, 2009, respectively. Interest expense was approximately $351,000 and $580,000 for the three months ended September 30, 2010 and 2009, respectively, and $1,194,000 and $1,452,000 for the nine months ended September 30, 2010 and 2009, respectively. The Partnership was required to maintain non-interest bearing accounts in the total amount of $986,150 as of September 30, 2010 and December 31, 2009, which has been reflected as restricted cash in the accompanying balance sheets. Pursuant to the October 12, 2010 Modification to Credit Agreement, the Partnership’s obligation to maintain such accounts was terminated.
NOTE 9 – PARTNERS’ CAPITAL
The Partnership originally registered 200,000,000 Units under Registration No. 333-69272 of which 90,241,162 Units remained available for sale, at a purchase price of $1.00 per Unit, as of March 31, 2008. The Partnership filed a new registration statement with the SEC on Form S-11, file number 333-150248, that was declared effective on April 30, 2008. The new registration statement registered 100,000,000 Units, including 9,758,838 new Units and 90,241,162 Units that were previously registered and unsold pursuant to registration statement No. 333-69272. Post-Effective Amendment No. 2 to such registration statement was declared effective by the SEC on April 30, 2010.
The Partnership experienced a significant increase in limited partner capital withdrawal requests in late 2008 and 2009. Prior to October 13, 2009, the Partnership Agreement permitted only 10% of limited partner capital to be withdrawn in any calendar year, and effective October 13, 2009 (with the adoption of amendments to the Partnership Agreement), this annual 10% limitation applies to the aggregate of limited partner withdrawals and distributions of net proceeds. As a consequence of the annual 10% limitation, the Partnership was required to suspend approximately $5,000,000 in December 2008 withdrawal requests until January 2009. All 2009 and 2010 scheduled withdrawals in the total amount of over $72,372,000 were not made because the Partnership did not have sufficient available cash to make such withd rawals and, pursuant to the modified line of credit agreement executed in October 2009, is prohibited from making capital distributions until the line of credit is fully repaid. After the line of credit has been repaid and its restrictions no longer apply, which the General Partner now anticipates will happen in late 2010, when funds become available for distribution from net proceeds, the General Partner anticipates causing the Partnership to make a pro rata distribution to partners of up to 10% of the Partnership’s capital, which will prevent any limited partner withdrawals during the same calendar year.
24
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
NOTE 10 – FAIR VALUE
The Partnership accounts for its financial assets and liabilities pursuant to ASC 820 – Fair Value Measurements and Disclosures. The Partnership adopted ASC 820 for its nonfinancial assets and nonfinancial liabilities effective January 1, 2009, which includes the Partnership’s real estate properties held for sale and investment. ASC 820 defines fair value, establishes a framework for measuring fair value and expands disclosures about fair value measurements.
Fair value is defined in ASC 820 as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date. ASC 820 also establishes a fair value hierarchy which requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The standard describes three levels of inputs that may be used to measure fair value:
Level 1 Quoted prices in active markets for identical assets or liabilities
Level 2 Observable inputs other than Level 1 prices, such as quoted prices for similar assets or
liabilities; quoted prices in active markets that are not active; or other inputs that are
observable or can be corroborated by observable market data for substantially the full
term of the assets or liabilities
Level 3 Unobservable inputs that are supported by little or no market activity, such as the
Partnership’s own data or assumptions.
Level 3 inputs include unobservable inputs that are used when there is little, if any, market activity for the asset or liability measured at fair value. In certain cases, the inputs used to measure fair value fall into different levels of the fair value hierarchy. In such cases, the level in which the fair value measurement in its entirety falls is determined based on the lowest level input that is significant to the fair value measurement. Our assessment of the significance of a particular input requires judgment and considers factors specific to the asset or liability being measured.
The following is a description of the Partnership’s valuation methodologies used to measure and disclose the fair values of its financial and nonfinancial assets and liabilities on a recurring and nonrecurring basis.
Impaired Loans
The Partnership does not record loans at fair value on a recurring basis. However, from time to time, a loan is considered impaired and an allowance for loan losses is established. A loan is considered impaired when, based on current information and events, it is probable that the Partnership will be unable to collect all amounts due according to the contractual terms of the loan agreement or when monthly payments are delinquent greater than ninety days. Once a loan is identified as impaired, management measures impairment in accordance with ASC 310-10-35. The fair value of impaired loans is estimated by either an observable market price (if available) or the fair value of the underlying collateral, if collateral dependent. The fair value of the loan’s collateral is determined by third party appraisa ls, broker price opinions, comparable properties or other indications of value. Those impaired loans not requiring an allowance represent loans for which the fair value of the collateral exceed the recorded investments in such loans. At September 30, 2010, the majority of the total impaired loans were evaluated based on the fair value of the collateral. In accordance with ASC 820, impaired loans where an allowance is established based on the fair value of collateral require classification in the fair value hierarchy. When the fair value of the collateral is based on an observable market price or is determined utilizing an income or market valuation approach based on an appraisal conducted by an independent, licensed appraiser using observable market data, the Partnership records the impaired loan as nonrecurring Level 2. When an appraised value is not available, management determines the fair value of the collateral is further impaired below the appraised value or there is no observable market data included in a current appraisal, the Partnership records the impaired loan as nonrecurring Level 3.
25
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Real Estate Held for Sale and Investment
Real estate held for sale and investment includes properties acquired through foreclosure of the related loans. When property is acquired, any excess of the Partnership’s recorded investment in the loan and accrued interest income over the estimated fair market value of the property, net of estimated selling costs, is charged against the allowance for credit losses. Subsequently, real estate properties are carried at the lower of carrying value or fair value less costs to sell. The Partnership periodically compares the carrying value of real estate held for investment to expected future cash flows as determined by internally or third party generated valuations (including third party appraisals) for the purpose of assessing the recoverability of the recorded amounts. If the carrying value exceeds future undiscounted cash flows, the a ssets are reduced to fair value. As fair value is generally based upon the future undiscounted cash flows, the Partnership records the impairment on real estate properties as nonrecurring Level 3.
The following table presents the fair value measurements of assets and liabilities recognized in the accompanying consolidated balance sheet measured at fair value on a recurring and nonrecurring basis and the level within the fair value hierarchy in which the fair value measurements fall at September 30, 2010 and 2009:
| Fair Value Measurements Using | ||||||
| Carrying Value | Quoted Prices In Active Markets for Identical Assets (Level 1) | Significant Other Observable Inputs (Level 2) | Significant Unobservable Inputs (Level 3) | |||
| 2010 | ||||||
Nonrecurring: | ||||||
| Impaired loans: | ||||||
| Commercial | $ | 5,904,000 | — | — | $ | 5,904,000 |
| Condominiums | 37,241,526 | — | — | 37,241,526 | ||
| Apartments | 4,387,200 | — | — | 4,387,200 | ||
Improved and unimproved land | 498,467 | — | — | 498,467 | ||
| Total | $ | 48,031,193 | — | — | $ | 48,031,193 |
| Real estate properties: | ||||||
| Commercial | $ | 19,485,290 | — | — | $ | 19,485,290 |
| Condominiums | 12,439,478 | — | — | 2,439,478 | ||
| Single family homes | 455,179 | — | — | 455,179 | ||
Improved and unimproved land | 10,950,684 | — | — | 10,950,684 | ||
| Total | $ | 43,330,631 | — | — | $ | 43,330,631 |
| 2009 | ||||||
Nonrecurring: | ||||||
| Impaired loans: | ||||||
| Commercial | $ | 16,661,225 | — | — | $ | 16,661,225 |
| Condominiums | 40,453,057 | — | — | 40,453,057 | ||
| Total | $ | 57,114,282 | — | — | $ | 57,114,282 |
| Real estate properties: | ||||||
| Commercial | $ | 7,892,000 | $ | 7,892,000 | ||
| Single family homes | 673,400 | 673,400 | ||||
| Total | $ | 8,565,400 | — | — | $ | 8,565,400 |
26
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
The following is a reconciliation of the beginning and ending balances of nonrecurring fair value measurements recognized in the accompanying consolidated balance sheet using significant unobservable (Level 3) inputs:
Impaired Loans | Real Estate Properties | ||||
| Balance, January 1, 2010 | $ | 38,581,158 | $ | 27,733,449 | |
Total realized and unrealized gains and losses: Included in net loss | (1,920,012 | ) | (465,294) | ||
| Foreclosures | (11,656,881 | ) | 11,656,881 | ||
| Loan payoffs | (3,353,374 | ) | — | ||
| Real estate sales | — | (93,953) | |||
| Transfers in and/or out of Level 3 | 26,380,302 | 4,499,548 | |||
| Balance, September 30, 2010 | $ | 48,031,193 | $ | 43,330,631 | |
| Balance, January 1, 2009 | $ | 23,978,649 | $ | — | |
Total realized and unrealized gains and losses: Included in net loss | (13,738,151 | ) | (356,045) | ||
| Foreclosures | (2,592,000 | ) | 2,592,000 | ||
| Transfers in and/or out of Level 3 | 49,465,784 | 6,329,445 | |||
| Balance, September 30, 2009 | $ | 57,114,282 | $ | 8,565,400 |
The following methods and assumptions were used to estimate the fair value of financial instruments not recognized at fair value in the accompanying consolidated balance sheets pursuant to ASC 825-10.
Cash and Cash Equivalents; Restricted Cash
The carrying value of cash and cash equivalents and the carrying value of restricted cash of approximately $4,644,000 and $986,000 as of September 30, 2010 and $7,530,000 and $986,000 as of December 31, 2009 approximates the fair value because of the relatively short maturity of these instruments.
Certificates of Deposit
Certificates of deposit are held in several federally insured depository institutions and have original maturities greater than three months. These investments are held to maturity. The carrying value of the Partnership’s certificates of deposit of $3,070,000 and $1,716,000 as of September 30, 2010 and December 31, 2009, respectively, approximates the fair value. Fair value measurements are estimated using a matrix based on interest rates.
27
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Loans Secured by Trust Deeds
The carrying value of loans secured by trust deeds (net of allowance for loan losses) of approximately $164,992,000 and $183,391,000 as of September 30, 2010 and December 31, 2009, respectively, other than those analyzed under ASC 310-10-35 and ASC 820 above, approximates the fair value. The fair value is estimated based upon projected cash flows discounted at the estimated current interest rates at which similar loans would be made by the Partnership. The applicable amount of accrued interest receivable and advances related thereto has also been considered in evaluating the fair value versus the carrying value.
Investment in Limited Liability Company
The carrying value of the Partnership’s investment in limited liability company of approximately $2,188,000 and $2,142,000 as of September 30, 2010 and December 31, 2009, respectively, approximates fair value.
Line of Credit Payable
The carrying value of the line of credit payable of approximately $16,376,000 and $23,695,000 as of September 30, 2010 and December 31, 2009, respectively, is estimated to be the fair value as borrowings on the line of credit are generally short-term and the line bears interest at a variable rate (equal to the bank’s prime rate plus 1.5% but subject to a floor of not less than 7.5% per annum).
Note Payable
The fair value of the Partnership’s note payable with a carrying value of approximately $10,430,000 and $10,500,000 as of September 30, 2010 and December 31, 2009, respectively, is estimated to be approximately $9,894,000 and $9,856,000 as of September 30, 2010 and December 31, 2009, respectively. The fair value is estimated based upon comparable market indicators of current pricing for the same or similar issue or on the current rate offered to the Partnership for debt of the same remaining maturity.
Other Financial Instruments
The carrying values of the following financial instruments as of September 30, 2010 and December 31, 2009 are estimated to approximate fair values due to the short term nature of these instruments.
September 30, 2010 | December 31, 2009 | ||||||
| Interest and other receivables | $ | 4,976,431 | $ | 4,644,320 | |||
| Due to general partner | $ | 406,944 | $ | 362,210 | |||
| Accrued interest payable (included in accounts payable and accrued liabilities) | $ | 153,292 | $ | 221,589 | |||
NOTE 11 - COMMITMENTS AND CONTINGENCIES
Construction/Rehabilitation Loans
The Partnership makes construction, rehabilitation and other loans which are not fully disbursed at loan inception. The Partnership has approved the borrowers up to a maximum loan balance; however, disbursements are made periodically during completion phases of the construction or rehabilitation or at such other times as required under the loan documents. As of September 30, 2010, there were approximately $200,000 of undisbursed loan funds which will be funded by a combination of repayments of principal on current loans or from cash reserves. The Partnership does not maintain a separate cash reserve to hold the undisbursed obligations that will be funded.
28
OWENS MORTGAGE INVESTMENT FUND,
a California Limited Partnership
Notes to Consolidated Financial Statements (Unaudited)
Environmental Remediation Obligation
The Partnership has an obligation to pay all required costs to remediate and monitor contamination of the real properties owned by 1850. As part of the Operating Agreement executed by the Partnership and its joint venture partner in 1850, Nanook, the Partnership has indemnified Nanook against all obligations related to the expected costs to monitor and remediate the contamination. The Partnership has accrued an amount that a third party consultant had estimated will need to be paid for this remediation. If additional amounts are required, it will be an obligation of the Partnership. As of September 30, 2010, approximately $568,000 of this obligation remains accrued on the Partnership’s books.
Legal Proceedings
The Partnership is involved in various legal actions arising in the normal course of business. In the opinion of management, such matters will not have a material effect upon the financial position of the Partnership.
29
PART I – Item 2.
Forward Looking Statements
Some of the information in this Form 10-Q may contain forward-looking statements. Such statements can be identified by the use of forward-looking words such as “may,” “will,” “expect,” “anticipate,” “estimate,” “continue” or other similar words. These statements discuss expectations, hopes, intentions, beliefs and strategies regarding the future, contain projections of results of operations or of financial conditions or state other forward-looking information. When considering such forward-looking statements you should keep in mind the risk factors and other cautionary statements in the Partnership’s Form 10-Q and in the most recent Form 10-K. Forward-looking statements include, among others, statements regarding future interest rates and economic conditions and their effect on the Partnership and its assets, trends in real estate markets in which the Partnership does business, effects of competition, estimates as to the allowance for loan losses and the valuation of real estate held for sale and investment, estimates of future limited partner withdrawals, additional foreclosures in 2010 and their effects on liquidity, and recovering certain values for properties through sale. Although management of the Partnership believes that the expectations reflected in such forward-looking statements are based on reasonable assumptions, there are certain factors, in addition to these risk factors and cautioning statements, such as unexpected changes in general economic conditions or interest rates, local real estate conditions, including a continued downturn in the real estate markets where the Partnership has made loans, adequacy of reserves, the impact of competition and competitive pricing, or weather and other natural occurrences that might cause a difference between actu al results and those forward-looking statements. All forward-looking statements and reasons why results may differ included in this Form 10-Q are made as of the date hereof, and we assume no obligation to update any such forward-looking statement or reason why actual results may differ.
Critical Accounting Policies
In preparing the consolidated financial statements, management is required to make estimates based on the information available that affect the reported amounts of assets and liabilities as of the balance sheet dates and revenues and expenses for the reporting periods. Such estimates relate principally to the determination of (1) the allowance for loan losses including the accrued interest and advances that are estimated to be unrecoverable based on estimates of amounts to be collected plus estimates of the value of the property as collateral; (2) the valuation of real estate held for sale and investment; and (3) the estimate of environmental remediation liabilities. At September 30, 2010, the Partnership owned twenty-five real estate properties, including twelve within majority- or wholly-owned limited liability companies. The Partnershi p also has a 50% ownership interest in a limited liability company that owns property located in Santa Clara, California.
Loans and related accrued interest and advances are analyzed on a periodic basis for recoverability. Delinquencies are identified and followed as part of the loan system. Provisions are made to adjust the allowance for loan losses and real estate held for sale to an amount considered by management to be adequate, with consideration to original collateral values at loan inception and to provide for unrecoverable accounts receivable, including impaired and other loans, accrued interest, and advances on loans.
Recent trends in the economy have been taken into consideration in the aforementioned process of arriving at the allowance for loan losses and real estate losses. Actual results could vary from the aforementioned provisions for losses. If the probable ultimate recovery of the carrying amount of a loan is less than amounts due according to the contractual terms of the loan agreement, the carrying amount of the loan is reduced to the present value of future cash flows discounted at the loan’s effective interest rate. If a loan is collateral dependent, it is valued by management at the estimated fair value of the related collateral, less estimated selling costs. Estimated collateral fair values are determined based on third party appraisals, opinions of fair value from third party real estate brokers and/or comparable third party sales .
30
If events and/or changes in circumstances cause management to have serious doubts about the collectability of the contractual payments or when monthly payments are delinquent greater than ninety days, a loan is categorized as impaired and interest is no longer accrued. Any subsequent payments received on impaired loans are first applied to reduce any outstanding accrued interest, and then are recognized as interest income, except when such payments are specifically designated principal reduction or when management does not believe the Partnership’s investment in the loan is fully recoverable.
Real estate held for sale includes real estate acquired through foreclosure and is stated at the lower of the recorded investment in the loan, inclusive of any senior indebtedness, or at the property’s estimated fair value, less estimated costs to sell.
Real estate held for investment includes real estate purchased or acquired through foreclosure (including twelve properties within consolidated limited liability companies) and is initially stated at the lower of cost or the recorded investment in the loan, or the property’s estimated fair value. Depreciation of buildings and improvements is provided on the straight-line method over the estimated remaining useful lives of buildings and improvements. Depreciation of tenant improvements is provided on the straight-line method over the lives of the related leases. Costs related to the improvement of real estate held for sale and investment are capitalized, whereas those related to holding the property are expensed.
The Partnership periodically compares the carrying value of real estate held for investment to expected undiscounted future cash flows, as determined by internally or third-party generated valuations, for the purpose of assessing the recoverability of the recorded amounts. If the carrying value exceeds future undiscounted cash flows, the assets are reduced to estimated fair value.
The Partnership’s environmental remediation liability related to the property located in Santa Clara, California was estimated based on a third party consultant’s estimate of the costs required to remediate and monitor the contamination.
Related Parties
The General Partner of the Partnership is Owens Financial Group, Inc. (“OFG” or the “General Partner”). All Partnership business is conducted through the General Partner, which arranges, services, and maintains the loan portfolio for the benefit of the Partnership. The fees received by the General Partner are paid pursuant to the Partnership Agreement and are determined at the sole discretion of the General Partner, subject to the limitations imposed by the Partnership Agreement. In the past, the General Partner has elected not to take the maximum compensation in order to maintain return to the limited partners at historical levels. There can be no assurance that the General Partner will continue to do this in the future. The following is a list of various Partnership activities for which related parties are compensated.
| · | Management Fees - In consideration of the management services rendered to the Partnership, the General Partner is entitled to receive from the Partnership a management fee payable monthly, subject to a maximum of 2.75% per annum of the average unpaid balance of the Partnership’s mortgage loans at the end of each month in the calendar year. Management fees amounted to approximately $658,000 and $624,000 for the three months ended September 30, 2010 and 2009, respectively. |
| · | Servicing Fees – All of the Partnership’s loans are serviced by the General Partner, in consideration for which the General Partner is entitled to receive from the Partnership a monthly fee, which, when added to all other fees paid in connection with the servicing of a particular loan, does not exceed the lesser of the customary, competitive fee in the community where the loan is placed or up to 0.25% per annum of the unpaid principal balance of the loans at the end of each month. Servicing fees amounted to approximately $122,000 and $153,000 for the three months ended September 30, 2010 and 2009, respectively. |
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| · | Acquisition and Origination Fees – The General Partner is entitled to receive and retain all acquisition and origination fees paid or payable by borrowers for services rendered in connection with the evaluation and consideration of potential investments of the Partnership (including any selection fee, mortgage placement fee, nonrecurring management fee, and any origination fee, loan fee, or points paid by borrowers). The acquisition and origination fees are paid by borrowers, and thus, are not an expense of the Partnership. Such fees earned by OFG amounted to approximately $0 and $72,000 on loans originated or extended of approximately $0 and $2,406,000 for the three months ended September 30, 2010 and 2009, res pectively. |
| · | Late Payment Charges – The General Partner is entitled to receive all late payment charges by borrowers on delinquent loans held by the Partnership (including additional interest and late payment fees). The late payment charges are paid by borrowers and collected by the Partnership with regular monthly loan payments or at the time of loan payoff. These are recorded as a liability (Due to General Partner) when collected and are not recognized as an expense of the Partnership. The amounts paid to or collected by OFG for such charges totaled approximately $2,000 and $5,000 for the three months ended September 30, 2010 and 2009, respectively. |
| · | Other Miscellaneous Fees - The Partnership remits other miscellaneous fees to the General Partner, which are collected from loan payments, loan payoffs or advances from loan principal (i.e. funding, demand and partial release fees). Such fees remitted to OFG totaled approximately $3,000 and $9,000 for the three months ended September 30, 2010 and 2009, respectively. |
| · | Partnership Expenses – The General Partner is entitled to be reimbursed by the Partnership for the actual cost of goods and materials used for or by the Partnership and obtained from unaffiliated entities and the actual cost of services of non-management and non-supervisory personnel related to the administration of the Partnership (subject to certain limitations in the Partnership Agreement). The amounts reimbursed to the General Partner by the Partnership were approximately $16,000 and $15,000 during the three months ended September 30, 2010 and 2009, respectively. |
| · | Carried Interest and Contributed Capital – The General Partner is required to contribute capital to the Partnership in the amount of 0.5% of the limited partners’ aggregate capital accounts and, together with its carried interest; the General Partner has an interest equal to 1% of the limited partners’ capital accounts. This carried interest of the General Partner of up to 1/2 of 1% is recorded as an expense of the Partnership and credited as a contribution to the General Partner’s capital account as additional compensation. As of September 30, 2010, the General Partner has made cash capital contributions of $1,496,000 to the Partnership. The General Partner is required to continue cash capital contributions to the Partnership in order to maintain its r equired capital balance. There was no carried interest expense charged to the Partnership for the three months ended September 30, 2010 and 2009, respectively. |
Results of Operations
Overview
The Partnership invests in mortgage loans on real property located in the United States that are primarily originated by the General Partner. The Partnership’s primary objective is to generate monthly income from its investment in mortgage loans. The Partnership’s focus is on making mortgage loans to owners and developers of real property whose financing needs are often not met by traditional mortgage lenders. These include borrowers that traditional lenders may not normally consider because of perceived credit risks based on ratings or experience levels, and borrowers who require faster loan decisions and funding. One of the Partnership’s competitive advantages has been the ability to approve loan applications and fund more quickly than traditional lenders.
The Partnership will originate loans secured by very diverse property types. In addition, the Partnership will occasionally lend to borrowers whom traditional lenders will not normally lend to because of a variety of factors including their credit ratings and/or experience. Due to these factors, the Partnership may make mortgage loans that are riskier than mortgage loans made by commercial banks and other institutional lenders. To compensate for those potential risks, the Partnership seeks to make loans at higher interest rates and with more protection from the underlying real property collateral, such as with lower loan to value ratios. The Partnership is not presently originating new mortgage loans, as it must first fully repay or refinance its outstanding line of credit borrowings or obtain an extension from the lending banks. After re payment of the credit line, the General Partner anticipates that the Partnership will make capital distributions pro rata to its limited partners (up to 10% of limited partners’ capital per calendar year) with net proceeds from loan payoffs, real estate sales and/or capital contributions, as funds become available.
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The Partnership’s operating results are affected primarily by:
| · | the amount of cash available to invest in mortgage loans; |
| · | the amount of borrowing to finance mortgage loan investments, and the Partnership’s cost of funds on such borrowing; |
| · | the level of real estate lending activity in the markets serviced; |
| · | the ability to identify and lend to suitable borrowers; |
| · | the interest rates the Partnership is able to charge on loans; |
| · | the level of delinquencies on mortgage loans; |
| · | the level of foreclosures and related loan and real estate losses experienced; and |
| · | the income or losses from foreclosed properties prior to the time of disposal. |
From 2007 to 2010, the U.S. economy deteriorated due to a combination of factors including a substantial decline in the housing market, liquidity issues in the lending market, and increased unemployment. The national unemployment rate has increased substantially from 5.0% in December 2007 to 9.6% in September 2010 while the California unemployment rate has increased over the same period from 6.1% to 12.4%. Although inflation continues to be a concern, the growth of the Gross Domestic Product slowed from 1.9% (revised) in 2007 to 0% (revised) in 2008 and declined 2.6% (revised) in 2009. The Gross Domestic Product increased by an annualized rate of 3.7%, 1.7% and 2.0% in the first three quarters of 2010, respectively. The Federal Reserve decreased the federal funds rate from 4.25% as of December 31, 2007 to 0.25% as of December 31, 2008, where it remains as of September 30, 2010.
The Partnership has experienced increased loan delinquencies and foreclosures over the past three years. The General Partner believes that this has primarily been the result of the depressed economy, lack of availability of credit and the slowing housing market in California and other parts of the nation. The increased loan delinquencies and foreclosures have resulted in a substantial reduction in Partnership income over the past three years. In addition, due to the state of the economy and depressed real estate values, the Partnership has had to increase its loan loss reserves and take write-downs on certain real estate properties which, in turn, have resulted in losses to the Partnership.
Although currently the General Partner believes that only twelve of the Partnership's delinquent loans will result in loss to the Partnership (and has caused the Partnership to record specific allowances for loan losses on such loans), the current economic slowdown could continue to push values of real estate properties lower. Given the continued decreasing values in the real estate market, the Partnership continues to perform frequent evaluations of such collateral values using internal and external sources, including the use of updated independent appraisals. As a result of these evaluations, the allowance for loan losses and the Partnership’s investments in real estate could change in the near term, and such changes could be material.
The Partnership experienced a significant increase in limited partner capital withdrawal requests in late 2008 and 2009 and a decreased ability to meet those requests. Prior to October 13, 2009, the Partnership Agreement permitted only 10% of limited partner capital to be withdrawn in any calendar year, and effective October 13, 2009 (with the adoption of amendments to the Partnership Agreement), this annual 10% limitation applies to the aggregate of limited partner withdrawals and distributions of net proceeds. As a consequence of the annual 10% limitation, the Partnership was required to suspend approximately $5,000,000 in December 2008 withdrawal requests until January 2009. All 2009 and 2010 scheduled withdrawals of over $72,372,000 have not been made because the Partnership has not had sufficient avail able cash to make such withdrawals and needed to have funds in reserve to pay down its line of credit and for operations. Also, pursuant to the October 2009 modified line of credit agreement, the Partnership is prohibited from making capital distributions to partners until the line of credit is fully repaid. After the line of credit has been repaid and its restrictions no longer apply, which the General Partner anticipates will happen in late 2010, when funds become available for distribution from net proceeds, the General Partner anticipates causing the Partnership to make a pro rata distribution to partners of up to 10% of the Partnership’s capital, which will prevent any limited partner withdrawals during the same calendar year.
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Although it appears that the U.S. economy has recently experienced positive growth, continued unemployment could negatively affect the values of real estate held by the Partnership and providing security for Partnership loans. This could potentially lead to even greater delinquencies and foreclosures, further reducing the liquidity and net income (yield) of the Partnership, decreasing the cash available for distribution in the form of net income and capital redemptions, and resulting in increased real estate held by the Partnership.
Historically, the General Partner has focused its operations on California and certain Western states. Because the General Partner has a significant degree of knowledge with respect to the real estate markets in such states, it is likely most of the Partnership’s loans will be concentrated in such states. As of September 30, 2010, 44.9% of loans were secured by real estate in Northern California, while 10.5%, 13.9%, 8.4%, 5.6% and 4.0% were secured by real estate in Southern California, Florida, Colorado, New York and Arizona, respectively. Such geographical concentration creates greater risk that any downturn in such local real estate markets could have a significant adverse effect upon results of operations.
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Summary of Financial Results
| Three Months Ended September 30, | Nine Months Ended September 30, | ||||||||||||
| 2010 | 2009 | 2010 | 2009 | ||||||||||
| Total revenues | $ | 4,198,676 | $ | 5,033,678 | $ | 12,395,414 | $ | 16,435,395 | |||||
| Total expenses | 2,535,215 | 5,884,632 | 11,658,256 | 23,222,025 | |||||||||
| Net income (loss) from continuing operations | $ | 1,663,461 | $ | (850,954 | ) | $ | 737,158 | $ | (6,786,630 | ) | |||
| Net income (loss) from discontinued operations | 125,690 | (45,609 | ) | 48,315 | (120,907 | ) | |||||||
| Net income (loss) | $ | 1,789,151 | $ | (896,563 | ) | $ | 785,473 | $ | (6,907,537 | ) | |||
| Less: Net income (loss) attributable to non-controlling interest | 196 | (5,591 | ) | (608 | ) | (5,965 | ) | ||||||
| Net income (loss) attributable to Owens Mortgage Investment Fund | $ | 1,789,347 | $ | (902,154 | ) | $ | 784,865 | $ | (6,913,502 | ) | |||
| Net income (loss) allocated to limited partners | $ | 1,771,355 | $ | (892,890 | ) | $ | 776,376 | $ | (6,846,840 | ) | |||
| Net income (loss) allocated to limited partners per weighted average limited partnership unit | $ | .007 | $ | (.004 | ) | $ | .003 | $ | (.03 | ) | |||
Annualized rate of return to limited partners (1) | 3.0 | % | (1.4) | % | 0.4 | % | (3.5) | % | |||||
| Distribution per partnership unit (yield) (2) | 1.5 | % | 2.2 | % | 1.1 | % | 1.9 | % | |||||
| Weighted average limited partnership units | 239,951,000 | 256,809,000 | 240,794,000 | 259,961,000 | |||||||||
| (1) | The annualized rate of return to limited partners is calculated based upon the net income (loss) allocated to limited partners per weighted average limited partnership unit as of September 30, 2010 and 2009 divided by the number of months during the period and multiplied by twelve (12) months. |
| (2) | Distribution per partnership unit (yield) is the annualized average of the monthly yield paid to the partners for the periods indicated. The monthly yield is calculated by dividing the total monthly cash distribution to partners by the prior month’s ending partners’ capital balance. |
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Three and Nine Months Ended September 30, 2010 Compared to Three and Nine Months Ended September 30, 2009
Total Revenues
Interest income on loans secured by trust deeds decreased $1,187,000 (38.4%) and $5,600,000 (47.3%) during the three and nine months ended September 30, 2010, respectively, as compared to the same periods in 2009, primarily due to an increase in non-accrual loans that were delinquent in payments greater than ninety days between 2009 and 2010 and a decrease in the weighted average balance of the loan portfolio of approximately 20% during the nine months ended September 30, 2010 as compared to 2009.
Gain (loss) on sales of real estate decreased $37,000 (642%) and increased $90,000 (133%) during the three and nine months ended September 30, 2010, respectively, as compared to the same periods in 2009. During the nine months ended September 30, 2010, the Partnership sold a commercial building in the complex located in Roseville, California for a gain of approximately $183,000, a house in the manufactured home subdivision development located in Ione, California for a loss of approximately $6,000, a vacant parcel of land adjacent to the retail complex located in Greeley, Colorado (held within 720 University LLC) for a loss of $37,000, and recognized $18,000 in deferred gain related to the sale of the Bayview Gardens property in 2006. During the nine months ended September 30, 2009, the Partnership sold a unit in the office cond ominium complex located in Roseville, California for a gain of approximately $50,000 and recognized $18,000 in deferred gain related to the sale of the Bayview Gardens property in 2006.
Other income decreased $21,000 (58.3%) during the nine months ended September 30, 2010, as compared to the same period in 2009 due primarily to a decrease in interest earned on money market investments and certificates of deposit. The rates earned on money market investments and certificates of deposit have decreased for the nine months ended September 30, 2010 as compared to the nine months ended September 30, 2009.
Total Expenses
Management fees to the General Partner increased $35,000 (5.5%) and $68,000 (4.2%) during the three and nine months ended September 30, 2010, respectively, as compared to the same periods in 2009. During 2010, while the General Partner has not collected the maximum management fees, it collected management fees equal to the minimum amount that the General Partner determined it needed to be paid in fees from the Partnership to enable it to cover its overhead and operating costs as the General Partner.
Servicing fees to the General Partner decreased $31,000 (20.4%) and $92,000 (19.4%) during the three and nine months ended September 30, 2010, respectively, as compared to the same periods in 2009. This was the result of a decrease in the weighted average balance of the loan portfolio of approximately 20.5% and 19.6% during the three and nine months ended September 30, 2010, respectively.
The maximum servicing fees were paid to the General Partner during the three and nine months ended September 30, 2010. If the maximum management fees had been paid to the General Partner during the three and nine months ended September 30, 2010, the management fees would have been $1,339,000 (increase of $681,000) and $4,197,000 (increase of $2,483,000), respectively, which would have decreased net income allocated to limited partners by approximately 38% and 317%, respectively, and net income allocated to limited partners per weighted average limited partner unit by the same percentages to income (loss) of $.005 and $(.007), respectively, from income of $.007 and $.003, respectively.
The maximum servicing fees were paid to the General Partner during the three and nine months ended September 30, 2009. If the maximum management fees had been paid to the General Partner during the three and nine months ended September 30, 2009, the management fees would have been $1,682,000 (increase of $1,059,000) and $5,209,000 (increase of $3,563,000), which would have increased net loss allocated to limited partners by approximately 117% and 52% and net loss allocated to limited partners per weighted average limited partner unit by the same percentage to a loss of $0.008 from a loss of $0.004 and to a loss of $0.04 from a loss of $0.03, respectively.
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The maximum management fee permitted under the Partnership Agreement is 2 ¾% per year of the average unpaid balance of mortgage loans. For the years 2007, 2008 and 2009 and the nine months ended September 30, 2010 (annualized), the management fees were 0.79%, 1.53%, 0.89% and 1.12% of the average unpaid balance of mortgage loans, respectively.
In determining the management fees and hence the yield to the partners, the General Partner may consider a number of factors, including current market yields, delinquency experience, un-invested cash and real estate activities. The General Partner expects that the management fees that it receives from the Partnership will vary in amount and percentage from period to period, and it is highly likely that the General Partner will again receive less than the maximum management fees in the future. However, if the General Partner chooses to take the maximum allowable management fees in the future, the yield paid to limited partners may be reduced.
Legal and professional expenses decreased $30,000 (21.4%) and $167,000 (31.8%) during the three and nine months ended September 30, 2010, respectively, as compared to the same periods in 2009, primarily due to increased legal and professional costs in the first quarter of 2009 incurred as a result of increased delinquent loans and loans in the process of foreclosure.
Interest expense decreased $229,000 (32.0%) and $259,000 (13.9%) during the three and nine months ended September 30, 2010, as compared to the same periods in 2009, due to a decrease in the average principal balance on the line of credit of approximately 50.6% in 2010 as compared to 2009, partially offset by an increase in the rate of interest charged on the Partnership’s line of credit in order to obtain a waiver of covenant violations incurred in late 2008 and early 2009 and in connection with the line of credit modification agreement executed in October 2009. During the 2nd quarter of 2009, the line of credit interest rate became subject to a floor of not less than 5% per annum, which was thereafter increased to a floor of 7.5% per annum.
The provision for loan losses of $(1,224,000) and $624,000 during the three and nine months ended September 30, 2010, respectively, was the result of an analysis performed on the loan portfolio. The general loan loss allowance decreased $29,000 and $1,296,000 during the three and nine month periods in 2010 due primarily to an increase in impaired loans that were analyzed for a specific allowance in 2010. The specific loan loss allowance decreased $1,195,000 during the quarter ended September 30, 2010, primarily due to a new appraisal obtained for the underlying property of two delinquent loans, which resulted in a decrease in the loan loss allowance for those loans of approximately $1,025,000. The specific loan loss allowance increased $1,920,000 during the nine months ended September 30, 2010 as reserves were increased or established on twelve loans based on discounted cash flows, third party appraisals or other indications of value. The Partnership also charged-off $5,699,000 from the allowance for loans that were foreclosed upon or paid off during the nine month period in 2010. The Partnership recorded a provision for loan losses of $2,309,000 and $13,429,000 during the three and nine months ended September 30, 2009, respectively.
The impairment losses on real estate properties of $465,000 and $356,000 during the three and nine months ended September 30, 2010 and 2009, respectively, were the result of updated appraisals or other valuation information obtained on one and two, respectively, of the Partnership’s real estate properties which resulted in impairment losses during the three and six month periods.
Net Loss from Rental and Other Real Estate Properties
Net loss from rental and other real estate properties increased $52,000 (430.1%) and $172,000 (49.1%) during the three and nine months ended September 30, 2010, as compared to the same periods in 2009. The increased loss during the nine months ended September 30, 2010 as compared to 2009 was due primarily to additional net losses incurred on real estate foreclosed in the past year or more and depreciation incurred on several of the Partnership’s real estate properties held for investment.
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Financial Condition
September 30, 2010 and December 31, 2009
Loan Portfolio
The number of Partnership mortgage investments decreased from 54 to 45, and the average loan balance increased from $3,922,000 to $4,185,000 between December 31, 2009 and September 30, 2010.
As of September 30, 2010 and December 31, 2009, the Partnership had twenty-eight and thirty impaired loans, respectively, that were delinquent in monthly payments greater than ninety days and/or in the process of foreclosure totaling approximately $145,324,000 (77%) and $146,039,000 (69%), respectively. This included twenty-six and twenty-eight past maturity loans totaling $142,843,000 (76%) and $142,277,000 (67%), respectively. In addition, eight and nine loans totaling approximately $6,553,000 (4%) and $22,292,000 (11%), respectively, were past maturity but current in monthly payments as of September 30, 2010 and December 31, 2009, respectively (combined total of impaired and past maturity loans of $151,877,000 (81%) and $168,331,000 (80%), respectively). Of the impaired and past maturity loans, approximately $61,691,000 (33% ) and $61,859,000 (29%), respectively, were in the process of foreclosure and $61,677,000 (33%) and $29,278,000 (14%), respectively, involved borrowers who were in bankruptcy as of September 30, 2010 and December 31, 2009. Subsequent to quarter end, two past maturity loans with aggregate principal balances totaling $600,000 had the maturity dates extended by three years to September 2013.
The Partnership foreclosed on six and five loans during the nine months ended September 30, 2010 and 2009 with aggregate principal balances totaling approximately $20,249,000 and $18,576,000, respectively, and obtained the properties via the trustee’s sales. Subsequent to quarter end, the Partnership foreclosed on three loans with aggregate principal balances to the Partnership totaling approximately $30,582,000 ($20,451,000 net of specific loan loss allowances) and obtained the properties via the trustee’s sales. The foreclosure of one of these loans secured by a condominium complex located in Miami, Florida will result in a tax loss to the partners in 2010 in the approximate amount of the loan loss allowance at September 30, 2010 ($10,039,000).
As of September 30, 2010 and December 31, 2009, the Partnership held the following types of mortgages:
| 2010 | 2009 | |||||||
| By Property Type: | ||||||||
| Commercial | $ | 83,743,860 | $ | 100,400,765 | ||||
| Condominiums | 52,637,978 | 59,470,752 | ||||||
| Apartments | 4,325,000 | 4,325,000 | ||||||
| Single family homes (1-4 units) | 325,125 | 327,127 | ||||||
| Improved and unimproved land | 47,277,912 | 47,260,116 | ||||||
| $ | 188,309,875 | $ | 211,783,760 | |||||
| By Deed Order: | ||||||||
| First mortgages | $ | 166,389,081 | $ | 189,642,783 | ||||
| Second and third mortgages | 21,920,794 | 22,140,977 | ||||||
| $ | 188,309,875 | $ | 211,783,760 | |||||
As of September 30, 2010 and December 31, 2009, approximately 45% and 43% of the Partnership’s mortgage loans were secured by real property in Northern California. In addition, approximately 76% of the Partnership’s mortgage loans as of September 30, 2010 were secured by real estate located in the states of California, Arizona, Florida and Nevada, which have experienced dramatic reductions in real estate values over the past three years.
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The General Partner (decreased) increased the allowance for loan losses by $(5,075,000) and $11,045,000 (provision net of charge-offs) during the nine months ended September 30, 2010 and 2009, respectively. The General Partner believes that the allowance is sufficient given the estimated underlying collateral values of impaired loans. There is no precise method used by the General Partner to predict delinquency rates or losses on specific loans. The General Partner has considered the number and amount of delinquent loans, loans in the process of foreclosure and loans in bankruptcy in determining the allowance for loan losses, but there can be no absolute assurance that the allowance is sufficient. Because any decision regarding the allowances for loan losses reflects judgment about the probability of futur e events, there is an inherent risk that such judgments will prove incorrect. In such event, actual losses may exceed (or be less than) the amount of any reserve. To the extent that the Partnership experiences losses greater than the amount of its reserves, the Partnership may incur a charge to earnings that will adversely affect operating results and the amount of any distributions payable to Limited Partners.
Changes in the allowance for loan losses for the nine months ended September 30, 2010 and 2009 were as follows:
| 2010 | 2009 | ||||||
| Balance, beginning of period | $ | 28,392,938 | $ | 13,727,634 | |||
| Provision | 623,812 | 13,429,151 | |||||
| Recovery of bad debts | — | — | |||||
| Charge-off | (5,698,589 | ) | (2,384,461 | ) | |||
| Balance, end of period | $ | 23,318,161 | $ | 24,772,324 | |||
The Partnership’s allowance for loan losses was $23,318,161 and $28,392,938 as of September 30, 2010 and December 31, 2009, respectively. As of September 30, 2010 and December 31, 2009, there was a general allowance for loan losses of $4,349,000 and $5,645,000, respectively, and a specific allowance for loan losses on twelve and ten loans in the total amount of $18,969,161 and $22,747,948, respectively.
Real Estate Properties Held for Sale and Investment
As of September 30, 2010, the Partnership held title to twenty-five properties that were foreclosed on or purchased by the Partnership in the total amount of approximately $92,281,000 (including properties held in twelve majority-owned and wholly-owned limited liability companies), net of accumulated depreciation of approximately $5,511,000. As of September 30, 2010, properties held for sale total $12,374,000 and properties held for investment total $79,907,000. When the Partnership acquires property by foreclosure, it typically earns less income on those properties than could be earned on mortgage loans and may not be able to sell the properties in a timely manner.
Eight of the Partnership’s twenty-five properties do not currently generate revenue. Expenses from real estate properties have increased from approximately $4,743,000 to $6,400,000 (34.9%) for the nine months ended September 30, 2009 and 2010, respectively, and revenues associated with these properties have increased from $4,393,000 to $5,877,000 (33.8%), thus generating a net loss from real estate properties of $523,000 during the nine months ended September 30, 2010 (compared to a net loss of $350,000 for the same period in 2009).
During the quarter ended September 30, 2010, the Partnership sold the office/retail complex located in Hilo, Hawaii for cash of $500,000 and a note in the amount of $2,000,000, resulting in a gain to the Partnership of approximately $805,000. Approximately $116,000 of this amount was recorded as current gain to the Partnership and the remaining $644,000 was deferred and will be recognized as principal payments are received on the loan under the installment method. The note is interest only and bears interest at the rate of 6.25% per annum for the first year, adjusts to 7.25% beginning July 1, 2011 and then 8.25% beginning July 1, 2012. The note matures on June 30, 2013. The net income (loss) to the Partnership from operation of this property was approximately $126,000 and $(46,000) for the three months ended September 30, 2010 and 2009, respectively, and $48,000 and $(121,000) for the nine months ended September 30, 2010 and 2009, respectively. The 2010 amounts include the gain on sale of the property of approximately $161,000 and have been reported as net income from discontinued operations in the accompanying consolidated statements of income.
During the quarter ended September 30, 2010, the Partnership foreclosed on a first mortgage loan secured by a commercial building located in Sacramento, California with a principal of $3,700,000 and obtained the property via the trustee’s sale. In addition, certain advances made on the loan or incurred as part of the foreclosure in the total amount of approximately $191,000 were capitalized to the basis of the property. The property is classified as held for sale as a sale is expected to be completed in the next one year period.
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During the quarter ended September 30, 2010, the Partnership obtained a deed in lieu of foreclosure from the borrower on four first mortgage loans secured by 60 converted condominium units in a complex located in Lakewood, Washington in the aggregate amount of approximately $6,957,000 and obtained the property. It was determined that the fair value of the property was lower than the Partnership’s investment in the loans and a specific loan allowance was established of approximately $573,000 as of June 30, 2010. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure, along with an additional charge to bad debt expense of approximately $4,000. The property is classified as held for investment as a sale is not expected in the next one year period. The Partnership formed a new, who lly-owned limited liability company, Phillips Road, LLC, to own and operate the complex.
During the nine months ended September 30, 2010, the Partnership obtained a deed in lieu of foreclosure from the borrower on a first mortgage loan secured by a medical office condominium complex located in Gilbert, Arizona in the amount of approximately $9,592,000 and obtained the property. It was determined that the fair value of the property was lower than the Partnership’s investment in the loan and a specific loan allowance was established for this loan in the total amount of approximately $4,914,000 as of March 31, 2010. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in May 2010, along with an additional charge to bad debt expense of approximately $74,000 for additional delinquent property taxes paid. The property is classified as held for investment as a sale is not expected to be completed in the next one year period. The Partnership formed a new, wholly-owned limited liability company, AMFU, LLC, to own and operate the complex.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by 19 converted units in a condominium complex located in San Diego, California in the amount of approximately $1,411,000 and obtained the property via the trustee’s sale. In addition, accrued interest income and certain advances made on the loan or incurred as part of the foreclosure (such as delinquent property taxes) in the total amount of approximately $88,000 were capitalized to the basis of the property.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by a golf course located in Auburn, California in the amount of $4,000,000 and obtained the property via the trustee’s sale. As of December 31, 2008, it was determined that the fair value of the property was lower than the Partnership’s investment in the loan and a specific loan allowance was established for this loan in the total amount of approximately $2,090,000 as of March 31, 2009. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in June 2009, along with an additional charge to bad debt expense of approximately $53,000 for additional delinquent property taxes. The Partnership formed a new, wholly-owned limited liability company, Lone Star Golf, LLC, to o wn and operate the golf course.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by undeveloped residential land located in Coolidge, Arizona in the amount of $2,000,000 and obtained the property via the trustee’s sale. In addition, accrued interest income and certain advances made on the loan or incurred as part of the foreclosure (such as legal fees and delinquent property taxes) in the total amount of approximately $99,000 were capitalized to the basis of the property.
During the nine months ended September 30, 2009, the Partnership foreclosed on two first mortgage loans secured by eight luxury townhomes located in Santa Barbara, California in the amount of $10,500,000 and obtained the property via the trustee’s sale. In addition, certain advances made on the loan or incurred as part of the foreclosure (such as legal fees and delinquent property taxes) in the total amount of approximately $432,000 were capitalized to the basis of the property. The Partnership formed a new, wholly-owned limited liability company, Anacapa Villas, LLC, to own and operate the townhomes.
During the nine months ended September 30, 2009, the Partnership foreclosed on a first mortgage loan secured by a marina with 30 boat slips and 11 RV spaces located in Oakley, California in the amount of $665,000 and obtained the property via the trustee’s sale. As of December 31, 2008, it was determined that the fair value of the property was lower than the Partnership’s investment in the loan by approximately $242,000, and, thus, a specific loan allowance was established for this loan. This amount was then recorded as a charge-off against the allowance for loan losses at the time of foreclosure in March 2009. The Partnership formed a new, wholly-owned limited liability company, The Last Resort and Marina, LLC, to own and operate the marina.
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During the nine months ended September 30, 2009, the Partnership sold one unit in the office condominium complex located in Roseville, California for net sales proceeds of approximately $468,000, resulting in a gain to the Partnership of approximately $50,000.
During the nine months ended September 30, 2009, the Partnership recorded an impairment loss of approximately $72,000 on five lots (four with houses) in the manufactured home subdivision development located in Ione, California based on an updated appraisal on one of the houses, which is reflected in losses on real estate properties in the accompanying consolidated statements of income.
During the nine months ended September 30, 2009, the Partnership recorded an impairment loss of approximately $284,000 on the storage facility located in Stockton, California based on an updated appraisal, which is reflected in losses on real estate properties in the accompanying consolidated statements of income.
Cash, Cash Equivalents, Restricted Cash and Certificates of Deposit
Cash, cash equivalents, restricted cash and certificates of deposit decreased from approximately $10,232,000 as of December 31, 2009 to approximately $8,701,000 as of September 30, 2010 (decrease of $1,531,000 or 15%) due primarily to the use of Partnership cash reserves for investments in loans secured by trust deeds and to pay down the balance of the line of credit. The Partnership disbursed approximately $657,000 under its commitments on existing loans and purchased at a discount the first deed of trust securing a property on which the Partnership has a second deed of trust for $602,000. In addition, the Partnership used cash reserves to pay down the line of credit by an additional $350,000 (over and above amounts received from loan payoffs or real estate sales) during the nine month period.
Interest and Other Receivables
Interest and other receivables increased from approximately $4,644,000 as of December 31, 2009 to $4,976,000 as of September 30, 2010 ($332,000 or 7.2%) due primarily to an increase in amounts advanced on delinquent loans to cover delinquent taxes, legal fees and insurance, and other receivables related to real estate properties obtained through foreclosure during 2009 and 2010.
Due to General Partner
Due to General Partner increased from approximately $362,000 as of December 31, 2009 to approximately $407,000 as of September 30, 2010 ($45,000 or 12.4%) due primarily to increased accrued management fees for the months of September and October 2010 as compared to November and December 2009. These fees are paid pursuant to the Partnership Agreement (see “Results of Operations” above) and can fluctuate from month to month.
Accounts Payable and Accrued Liabilities
Accounts payable and accrued liabilities increased from approximately $2,135,000 as of December 31, 2009 to approximately $2,675,000 as of September 30, 2010 ($540,000 or 25.3%) due primarily to an increase in accrued expenses on Partnership real estate (including property taxes payable) as of September 30, 2010.
Line of Credit Payable
Line of credit payable decreased from $23,695,000 as of December 31, 2009 to approximately $16,376,000 as of September 30, 2010 ($7,319,000 or 30.9%) due to repayments made during the nine month period from partial and full loan payoffs received, proceeds from sales of real estate and cash reserves. Due to the restrictions placed on the Partnership pursuant to the modified line of credit agreement executed in October 2009, the Partnership is no longer able to draw on the line of credit and is prohibited from distributing capital to limited partners until the line is fully repaid, among other conditions.
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Asset Quality
A consequence of lending activities is that losses will be experienced and that the amount of such losses will vary from time to time, depending on the risk characteristics of the loan portfolio as affected by economic conditions and the financial experiences of borrowers. Many of these factors are beyond the control of the General Partner. There is no precise method of predicting specific losses or amounts that ultimately may be charged off on specific loans or on segments of the loan portfolio.
The conclusion that a Partnership loan may become uncollectible, in whole or in part, is a matter of judgment. Although institutional lenders are subject to regulations that, among other things, require them to perform ongoing analyses of their loan portfolios (including analyses of loan-to-value ratios, reserves, etc.), and to obtain current information regarding their borrowers and the securing properties, the Partnership is not subject to these regulations and has not adopted these practices. Rather, management of the General Partner, in connection with the quarterly closing of the accounting records of the Partnership and the preparation of the financial statements, evaluates the Partnership’s mortgage loan portfolio. The allowance for loan losses is established through a provision for loan losses based on the General Partner 217;s evaluation of the risk inherent in the Partnership’s loan portfolio and current economic conditions. Such evaluation, which includes a review of all loans on which the General Partner determines that full collectability may not be reasonably assured, considers among other matters:
| borrowers’ financial condition and adverse situations that may affect the borrowers’ ability to pay; |
Based upon this evaluation, a determination is made as to whether the allowance for loan losses is adequate to cover probable losses of the Partnership. Additions to the allowance for loan losses are made by charges to the provision for loan losses. Loan losses deemed to be uncollectible are charged against the allowance for loan losses. Recoveries of previously charged off amounts are credited to the allowance for loan losses. As of September 30, 2010, management believes that the allowance for loan losses of approximately $23,318,000 is adequate in amount to cover probable losses. Because of the number of variables involved, actual results may and do sometimes differ significantly from estimates made by the General Partner. As of September 30, 2010, twenty-eight loans totaling $145,324,000 were impaired, delinquent in monthly payments g reater than ninety days and/or in the process of foreclosure. This includes twenty-six past maturity loans totaling $142,843,000. In addition, eight loans totaling $6,553,000 were also past maturity but current in monthly payments as September 30, 2010 (combined total of $151,877,000). The Partnership recorded charge-offs against the allowance for loan losses of approximately $5,699,000 for five foreclosed loans and two loans that were paid off during the nine months ended September 30, 2010 and after the General Partner’s evaluation of the loan portfolio recorded an additional provision for loan losses of approximately $624,000 for losses that are estimated to have likely occurred, which resulted in a net decrease to the allowance of approximately $5,075,000. The General Partner believes that the allowance is sufficient given the estimated fair value of the underlying collateral values of impaired and past maturity loans.
Construction Loans are determined by the General Partner to be those loans made to borrowers for the construction of entirely new structures or dwellings, whether residential, commercial or multifamily properties. The General Partner has approved the borrowers up to a maximum loan balance; however, disbursements are made in phases throughout the construction process. As of September 30, 2010, the Partnership held no remaining Construction Loans in its loan portfolio.
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The Partnership also makes loans, the proceeds of which are used to remodel, add to and/or rehabilitate an existing structure or dwelling, whether residential, commercial or multifamily properties, or are used to complete improvements to land. The General Partner has determined that these are not Construction Loans. Many of these loans are for cosmetic refurbishment of both interiors and exteriors of existing condominiums or conversion of apartments or other properties into condominiums. The refurbished/converted units are then sold to new users, and the sales proceeds are used to repay the Partnership’s loans. These loans may also include completion of tenant or other improvements on commercial properties. These loans are referred to as Rehabilitation Loans. As of September 30, 2010, the Partnership held two Rehabilitation Loans totaling approximately $11,281,000 and had commitments to disburse an additional $200,000 on Rehabilitation Loans. Certain loans that were previously classified as Rehabilitation Loans were removed from this classification during the nine months ending September 30, 2010 because rehabilitation has been completed and/or all remaining holdback funds have been disbursed to the borrowers.
Liquidity and Capital Resources
During the nine months ended September 30, 2010, cash flows provided by operating activities approximated $1,665,000. Investing activities provided approximately $4,442,000 of net cash during the nine months, as approximately $7,594,000 was received from the payoff or sale of loans and sale of real estate, net of approximately $3,218,000 used for investing in loans, real estate and certificates of deposit. Approximately $8,993,000 was used in financing activities, as approximately $7,319,000 was used to repay the line of credit and $1,589,000 was distributed to limited partners in the form of income distributions.
The General Partner believes that the Partnership will have sufficient cash flow to sustain operations over the next year. However, due to the restrictions placed on the Partnership pursuant to the extension and modification of the line of credit agreement in October 2009, the Partnership will be required to apply to the credit line, until it is fully repaid, all net proceeds of loan repayments and real estate sales received. Thus, the Partnership will not be able to make capital distributions or withdrawals to limited partners until the line of credit is repaid.
The General Partner’s continuing intention is to cause the Partnership to retire the line of credit as soon as practicable, but there can be no assurance as to when this will occur. If the Agent and the Lenders take action to collect the unpaid principal balance, the Partnership may be required to negotiate with the Lenders regarding an extension. If an acceptable extension is not obtained, the Partnership may be required to refinance its indebtedness with a different institution, potentially on unfavorable terms, or liquidate Partnership investments to repay outstanding borrowings, which may occur at reduced prices and result in losses to the Partnership.
The Partnership experienced a significant increase in limited partner capital withdrawal requests in late 2008 and 2009. Prior to October 13, 2009, the Partnership Agreement permitted only 10% of limited partner capital to be withdrawn in any calendar year, and effective October 13, 2009 (with the approval of the amendments to the Partnership Agreement), this annual 10% limitation applies to the aggregate of limited partner withdrawals and distributions of net proceeds. As a consequence of the annual 10% limitation, the Partnership was required to suspend approximately $5,000,000 in December 2008 withdrawal requests until January 2009. All 2009 and 2010 scheduled withdrawals in the total amount of over $72,372,000 were not made because the Partnership has not had sufficient available cash to make such wi thdrawals and, pursuant to the modified line of credit agreement executed in October 2009, is prohibited from making capital distributions until the line of credit is fully repaid. After the line of credit has been repaid and its restrictions no longer apply, which the General Partner now anticipates will happen in late 2010, when funds become available for distribution from net proceeds, the General Partner anticipates causing the Partnership to make a pro rata distribution to partners up to 10% of Partnership capital, which will prevent any limited partner withdrawals during the same calendar year.
The limited partners may withdraw capital from the Partnership, either in full or partially, subject to the following limitations, among others:
| · | The withdrawing limited partner is required to provide written notice of withdrawal to the General Partner, and the distribution to the withdrawing limited partner will not be made until 61 to 91 days after delivery of such notice of withdrawal. |
| · | No withdrawal of capital with respect to Units is permitted until the expiration of one year from the date of purchase of such Units, other than Units received under the Partnership’s Reinvested Distribution Plan. |
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| · | Any such payments are required to be made only from net proceeds and capital contributions (as defined). |
| · | A maximum of $100,000 per limited partner may be withdrawn during any calendar quarter. |
| · | The General Partner is not required to establish a reserve fund for the purpose of funding withdrawals. |
| · | No more than 10% of the aggregate capital accounts of limited partners can be paid to limited partners through any combination of distributions of net proceeds and withdrawals during any calendar year, except upon a plan of dissolution of the Partnership. |
Sales of Units to investors, reinvestment of limited partner distributions, portfolio loan payoffs, and advances on the Partnership’s line of credit (which has matured and against which the Partnership cannot currently draw) provide the capital for new mortgage investments, when the Partnership has the ability to make such investments. Under normal conditions, if general market interest rates were to increase substantially, investors might turn to interest-yielding investments other than Partnership Units, which would reduce the liquidity of the Partnership and its ability to make additional mortgage investments to take advantage of the generally higher interest rates. In addition, an increase in delinquencies on Partnership loans could also have the effect of reducing liquidity which could reduce the cash available to in vest in new loans and distribute to limited partners. In contrast, a significant increase in the dollar amount of loan payoffs and additional limited partner investments without the origination of new loans of the same amount would increase the liquidity of the Partnership. This increase in liquidity could result in a decrease in the yield paid to limited partners as the Partnership would be required to invest the additional funds in lower yielding, short term investments.
Limited partner capital decreased by approximately $1,024,000 during the nine months ended September 30, 2010. A large component of the decrease in limited partner capital during 2010 was an increase in the allowance for loan losses in the amount of approximately $624,000. Reinvested distributions from limited partners electing to reinvest were $647,000 and $2,524,000 for the nine months ended September 30, 2010 and 2009, respectively. There were no limited partner withdrawals during the nine months ended September 30, 2010. Limited partner withdrawals were $5,110,000 for the nine months ended September 30, 2009. Limited partner withdrawal percentages have been 4.29%, 4.70%, 6.34%, 10.00% and 2.01% for the years ended December 31, 2005, 2006, 2007, 2008 and 2009, respectively. These percentages are the annual average of the limited partne rs’ capital withdrawals in each calendar quarter divided by the total limited partner capital as of the end of each quarter.
The total amount of indebtedness incurred by the Partnership cannot exceed the sum of 50% of the aggregate fair market value of all Partnership loans. The Partnership has executed a line of credit agreement with a group of three banks that has provided interim financing on mortgage loans invested in by the Partnership. On October 13, 2009, a Modification to Credit Agreement was executed extending the maturity date to March 31, 2010 but providing that the lending banks were not required to advance any additional amounts. As of September 30, 2010 and December 31, 2009, there was $16,376,000 and $23,695,000, respectively, outstanding on the line of credit. As of the date of this filing, the total amount outstanding is approximately $14,375,000. As further described in the following paragraphs, the credit line modification that the Partne rship negotiated in order to extend the maturity date imposes additional costs and restrictions on the Partnership.
All assets of the Partnership are pledged as security for the line of credit. As a result of modifications to the line of credit agreement, the agent for the lending banks has received collateral assignments of deeds of trusts for current performing note receivables with a value of at least 200% of the credit line’s principal balance. Additionally, the line of credit is guaranteed by the General Partner.
As a result of modifications to the line of credit agreement, all net proceeds of real estate or other investment property sales by the Partnership and all payments of loan principal received by the Partnership must be applied to the credit line, until it is fully repaid. Additionally, while the Partnership has outstanding borrowings on the credit line, the modifications prevent the Partnership from repurchasing partners’ interests or making distributions to partners (including withdrawals), other than distributions of up to a 3% annual return on investment.
The bank line of credit agreement requires the Partnership to meet certain financial covenants including minimum tangible net worth, ratio of total funded debt to tangible net worth and ratio of maximum outstanding principal to asset value. The Partnership’s financial covenant regarding profitability has been removed from the line of credit agreement.
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In connection with modifications to the line of credit agreement, the unpaid principal amount accrued interest prior to maturity at an annual rate of 1.50% in excess of the prime rate in effect from time to time (the prime rate was 3.25% as of September 30, 2010), subject to an interest rate floor of 7.50% per annum. Prior to March 2009, interest on the line of credit accrued at the prime rate, but a 5% interest floor was imposed by the banks in March 2009 as a condition of a financial covenant waiver. These interest rate increases and floors have increased the Partnership’s cost of funds on such borrowings, resulting in higher Partnership interest expense and lower Partnership income than would apply when interest accrued at the prime rate.
As a result of the modifications to the line of credit agreement, the Partnership is unable to borrow additional funds on the credit line. The line of credit agreement matured on March 31, 2010 and has not been repaid by the Partnership. Commencing before the extended maturity date of the line of credit, the General Partner sought to negotiate with the Lenders to further extend its maturity until a date by which the Partnership would anticipate having sufficient funds to retire the entire outstanding credit line balance. As a result of the General Partner’s communications with the Lenders, on June 15, 2010, the Agent for the Lenders sent the Partnership a forbearance letter stating that the Partnership’s repayment obligations matured on March 31, 2010. The letter notified the Partnership of the Agent’s intention to forbe ar through June 30, 2010 in taking legal action on account of the Partnership’s failure to pay all principal and interest at maturity through that date, assuming that there is no further default under the credit agreement. On July 7, 2010, the Agent for the Lenders sent the Partnership another forbearance letter stating that the Agent intends to further forbear through September 30, 2010 in taking any legal action on account of the Borrower’s failure to pay all principal and interest at maturity, assuming that there is no further default under the credit agreement.
The July 7, 2010 forbearance letter indicates that the Agent’s forbearance is conditioned on the Partnership’s delivery of the Partnership’s forecast regarding repayment of the credit line on or before September 30, 2010, and regular status updates regarding the Partnership’s refinancing and asset sale efforts. However, the letter does not demand any actions by the Partnership regarding the outstanding line of credit balance. The letter disclaims any waiver or modification of the Agent’s or the Lenders’ legal and contractual rights, and expressly reserves such rights. The Partnership has not received from the Agent for the Lenders a forbearance letter or other statement of intention to forbear from taking legal action with respect to the credit line after September 30, 2010.
On October 12, 2010, another Modification to Credit Agreement was executed by the Partnership and the Lenders, containing an acknowledgment of the delinquency of the Partnership’s repayment of the outstanding line of credit balance. This Modification directed the Lenders to remit to the Agent all funds held by the Lenders in the Partnership’s restricted deposit accounts, in the total amount of $1,000,000. Such amount was applied by the Agent to reduce the outstanding balance of the line of credit. The October 12, 2010 Modification to Credit Agreement is furnished as Exhibit 10.1 accompanying this Quarterly Report on Form 10-Q.
The General Partner’s continuing intention is to cause the Partnership to retire the line of credit as soon as practicable, but there can be no assurance as to when this will occur. If the Agent and the Lenders take action to collect the unpaid principal balance, the Partnership may be required to negotiate with the Lenders regarding an extension. If an acceptable extension is not obtained, the Partnership may be required to refinance its indebtedness with a different institution, potentially on unfavorable terms, or liquidate Partnership investments to repay outstanding borrowings, which may occur at reduced prices and result in losses to the Partnership.
The Partnership also has a note payable with a bank through its investment in 720 University, LLC with a balance of approximately $10,430,000 as of September 30, 2010. The interest rate on this note is fixed at 5.07% per annum and the note matures on March 1, 2015.
As of September 30, 2010, the Partnership has commitments to advance additional funds to borrowers of rehabilitation loans in the total amount of approximately $200,000. The Partnership expects the majority of these amounts to be advanced to borrowers by December 2010. The source of funds to fulfill these commitments will be primarily from cash reserves.
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It was determined, subsequent to foreclosure of the applicable loans in November 2009 that additional renovation costs in the total amount of approximately $2,000,000 will be required to complete certain of the condominium units located in Phoenix, Arizona now owned by the Partnership so that these units may be leased or sold. The funds to pay for these capitalized costs will likely come from either cash reserves or new borrowings securing the property.
Contingency Reserves
The Partnership is required to maintain cash, cash equivalents and marketable securities as contingency reserves in an aggregate amount of at least 1-1/2% of the capital accounts of the limited partners to cover expenses in excess of revenues or other unforeseen obligations of the Partnership. The cash capital contributions of OFG (amounting to $1,496,000 as of September 30, 2010), up to a maximum of 1/2 of 1% of the limited partners’ capital accounts may be maintained as additional contingency reserves, if considered necessary by the General Partner. Although the General Partner believes the contingency reserves are adequate, it could become necessary for the Partnership to sell or otherwise liquidate certain of its investments or other assets to cover such contingencies on terms which might not be favorable to the Par tnership.
The General Partner of the Partnership carried out an evaluation, under the supervision and with the participation of the General Partner’s management, including the General Partner’s Chief Executive Officer and Chief Financial Officer, of the effectiveness of the design and operation of the Partnership’s disclosure controls and procedures as that term is defined in Rules 13a-15(e) and 15d-15(e) of the Securities Exchange Act of 1934, as amended. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer of the General Partner concluded that, as of September 30, 2010, which is the end of the period covered by this quarterly report on Form 10-Q, the Partnership’s disclosure controls and procedures are effective.
There have been no changes in the Partnership’s internal control over financial reporting in the fiscal quarter ending September 30, 2010 that have materially affected, or are reasonably likely to materially affect, the Partnership’s internal control over financial reporting.
PART II. OTHER INFORMATION
In the normal course of business, the Partnership may become involved in various types of legal proceedings such as assignment of rents, bankruptcy proceedings, appointment of receivers, unlawful detainers, judicial foreclosure, etc., to enforce the provisions of the deeds of trust, collect the debt owed under the promissory notes, or to protect, or recoup its investment from the real property secured by the deeds of trust. None of these actions would typically be of any material importance. As of the date hereof, the Partnership is not involved in any legal proceedings other than those that would be considered part of the normal course of business.
As previously reported in the Partnership’s Quarterly Report on Form 10-Q filed August 13, 2010, and as described above under “Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources,” the Partnership’s line of credit agreement matured on March 31, 2010 and has not been repaid by the Partnership. Subsequent letters from the Agent for the Lenders to the Partnership indicated the Agent’s intention to forbear, through September 30, 2010, under certain circumstances, from taking legal action against the Partnership with respect to the credit line. The Partnership has not received from the Agent for the Lenders a forbearance letter or other statement of intention to forbear from taking legal action with respect to the credit line after September 30, 2010. The October 12, 2010 Modification to Credit Agreement contained an acknowledgment of the delinquency of the Partnership’s repayment of the outstanding line of credit balance.
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(a) Exhibits
| 10.1 | Modification to Credit Agreement dated October 12, 2010 |
| 31.1 | Section 302 Certification of William C. Owens |
| 31.2 | Section 302 Certification of Bryan H. Draper |
| 32 | Certifications Pursuant to 18 U.S.C. Section 1350 |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Dated: November 15, 2010 | OWENS MORTGAGE INVESTMENT FUND, a California Limited Partnership | ||
| By: | OWENS FINANCIAL GROUP, INC., GENERAL PARTNER | ||
| Dated: November 15, 2010 | By: | /s/ William C. Owens | |
| William C. Owens, President | |||
| Dated: November 15, 2010 | By: | /s/ Bryan H. Draper | |
| Bryan H. Draper, Chief Financial Officer | |||
| Dated: November 15, 2010 | By: | /s/ Melina A. Platt | |
| Melina A. Platt, Controller | |||
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