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BEAUMONT SELECT CORP 10-Q 2008
bmnm10q09302008.htm
 



UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549


FORM 10-Q


þ           QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF>
THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2008

¨           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: 001-32171

Bimini Capital Management, Inc.
(Exact name of registrant as specified in its charter)

     
Maryland
 
72-1571637
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)

3305 Flamingo Drive, Vero Beach, Florida 32963
(Address of principal executive offices) (Zip Code)

(772) 231-1400
(Registrant’s telephone number, including area code)


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 þ     NO ¨

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 definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer ¨                                           Accelerated filer ý                                           Non-accelerated filer ¨                                            Smaller Reporting Company ý

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). YES ¨     NO þ

As of November 6, 2008, the number of shares outstanding of the registrant’s Class A Common Stock, $0.001 par value, was 25,534,816; the number of shares outstanding of the registrant’s Class B Common Stock, $0.001 par value, was 319,388; and the number of shares outstanding of the registrant’s Class C Common Stock, $0.001 par value, was 319,388.



 









BIMINI CAPITAL MANAGEMENT, INC.

INDEX



PART I. FINANCIAL INFORMATION
 
     ITEM 1.     FINANCIAL STATEMENTS.
3
          Consolidated Balance Sheets as of September 30, 2008 (unaudited) and December 31, 2007
3
          Consolidated Statements of Operations for the nine and three months ended September 30, 2008  and 2007
          (unaudited)
4
          Consolidated Statement of Stockholders’ Equity (Deficit) for the nine months ended September 30, 2008 (unaudited)
5
          Consolidated Statements of Cash Flows for the nine months ended September 30, 2008  and 2007 (unaudited)
6
          Notes to Consolidated Financial Statements (unaudited)
7
     ITEM 2.     MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
                        AND RESULTS OF OPERATIONS.
27
     ITEM 3.     QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
40
     ITEM 4.     CONTROLS AND PROCEDURES.
41
     ITEM 4T.   CONTROLS AND PROCEDURES.
41
   
PART II. OTHER INFORMATION
 
     ITEM 1.     LEGAL PROCEEDINGS.
41
     ITEM 1A.  RISK FACTORS.
41
     ITEM 6.     EXHIBITS.
42




 
 

 

PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
BIMINI CAPITAL MANAGEMENT, INC.
 
CONSOLIDATED BALANCE SHEETS
 
             
   
(Unaudited)
       
   
September 30, 2008
   
December 31, 2007
 
ASSETS:
           
Mortgage-backed securities:
           
Available-for-sale, pledged to counterparties, at LOCOM
  $ -     $ 293,729,451  
Held for trading, pledged to counterparties, at fair value
    208,921,118       396,175,157  
Unpledged, at fair value
    17,646,698       674,326  
Total mortgage-backed securities
    226,567,816       690,578,934  
Cash and cash equivalents
    12,376,528       27,284,760  
Restricted cash
    250,000       8,800,000  
Principal payments receivable
    59,443       99,089  
Accrued interest receivable
    1,084,148       3,637,302  
Property and equipment, net
    4,086,364       4,181,813  
Prepaids and other assets
    4,910,876       5,315,835  
Assets held for sale
    42,583,586       96,619,615  
Total Assets
  $ 291,918,761     $ 836,517,348  
                 
LIABILITIES AND STOCKHOLDERS’ EQUITY (DEFICIT)
               
                 
LIABILITIES:
               
Repurchase agreements
  $ 200,707,819     $ 678,177,771  
Junior subordinated notes due to Bimini Capital Trust I & II
    103,097,000       103,097,000  
Accrued interest payable
    1,399,624       3,872,101  
Accounts payable, accrued expenses and other
    1,051,300       644,858  
Liabilities related to assets held for sale
    14,352,687       27,842,174  
Total Liabilities
    320,608,430       813,633,904  
                 
COMMITMENTS AND CONTINGENCIES
               
                 
STOCKHOLDERS' EQUITY (DEFICIT):
               
Preferred stock, $0.001 par value; 10,000,000 shares authorized; designated, 1,800,000 shares as Class A Redeemable and 2,000,000 shares as Class B Redeemable; no shares issued and outstanding  as of September 30, 2008 and December 31, 2007
    -       -  
                 
Class A Common Stock, $0.001 par value; 98,000,000 shares designated: 25,534,816 shares issued and outstanding as of September 30, 2008 and 24,861,404 shares issued and outstanding as of December 31, 2007
    25,535       24,861  
                 
Class B Common Stock, $0.001 par value; 1,000,000 shares designated, 319,388 shares issued and outstanding as of September 30, 2008 and December 31, 2007
    319       319  
                 
Class C Common Stock, $0.001 par value; 1,000,000 shares designated, 319,388 shares issued and outstanding as of September 30, 2008 and December 31, 2007
    319       319  
                 
Additional paid-in capital
    339,008,659       338,241,582  
Accumulated deficit
    (367,724,501 )     (315,383,637 )
Total Stockholders’ Equity (Deficit)
    (28,689,669 )     22,883,444  
Total Liabilities and Stockholders’ Equity (Deficit)
  $ 291,918,761     $ 836,517,348  
See Notes to Consolidated Financial Statements
 



Bimini Capital Management, Inc.
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
 
   
Nine Months Ended
   
Three Months Ended
 
   
September 30, 2008
   
September 30, 2007
   
September 30, 2008
   
September 30, 2007
 
                         
Interest income, net of amortization of premium and discount
  $ 23,046,363     $ 90,793,422     $ 6,148,667     $ 24,634,854  
Interest expense
    (17,278,745 )     (92,286,037 )     (4,192,838 )     (21,143,461 )
Net interest income(expense), before interest on junior subordinated notes
    5,767,618       (1,492,615 )     1,955,829       3,491,393  
Interest expense on junior subordinated notes
    (6,271,295 )     (6,271,296 )     (2,090,432 )     (2,090,432 )
Net interest income(expense)
    (503,677 )     (7,763,911 )     (134,603 )     1,400,961  
Fair value adjustment- available-for-sale securities
    -       (1,707,840 )     -       (1,707,840 )
Fair value adjustment - held for trading securities
    (1,166,408 )     282,089       (1,031,577 )     282,089  
Other-than-temporary loss on mortgage-backed securities
    -       (55,250,278 )     -       -  
Gain/(loss) on sale of mortgage-backed securities, net
    755,135       (20,492,779 )     46,815       (1,104,402 )
Deficiency of revenues, net
    (914,950 )     (84,932,719 )     (1,119,365 )     (1,129,192 )
                                 
Direct REIT operating expenses
    538,944       632,709       165,331       181,007  
                                 
General and administrative expenses:
                               
Compensation and related benefits
    2,256,582       3,562,711       583,239       1,218,881  
Directors' fees and liability insurance
    514,724       581,608       145,982       197,634  
Audit, legal and other professional fees
    562,821       1,004,987       107,351       323,761  
Other administrative
    974,029       507,811       215,303       174,634  
Total general and administrative expenses
    4,308,156       5,657,117       1,051,875       1,914,910  
                                 
Total expenses
    4,847,100       6,289,826       1,217,206       2,095,917  
Loss from continuing operations before minority interest
    (5,762,050 )     (91,222,545 )     (2,336,571 )     (3,225,109 )
Minority interest in consolidated subsidiary
    -       770,563       -       -  
Loss from continuing operations
    (5,762,050 )     (90,451,982 )     (2,336,571 )     (3,225,109 )
Gain/(loss) on sale and disposal of assets of discontinued operations, net of tax
    -       (6,357,596 )     -       4,111,607  
Loss from discontinued operations, net of tax
    (48,292,910 )     (148,451,063 )     (12,053,964 )     (5,609,698 )
Total loss from discontinued operations, net of tax
    (48,292,910 )     (154,808,659 )     (12,053,964 )     (1,498,091 )
                                 
Net loss
  $ (54,054,960 )   $ (245,260,641 )   $ (14,390,535 )   $ (4,723,200 )
                                 
Basic And Diluted Net Loss Per Share Of:
                               
CLASS A COMMON STOCK
                               
Continuing operations
  $ (0.23 )   $ (3.63 )   $ (0.09 )   $ (0.13 )
Discontinued operations
    (1.89 )     (6.21 )     (0.47 )     (0.06 )
Total basic and diluted net loss per Class A share
  $ (2.12 )   $ (9.84 )   $ (0.56 )   $ (0.19 )
CLASS B COMMON STOCK
                               
Continuing operations
  $ (0.22 )   $ (3.61 )   $ (0.09 )   $ (0.13 )
Discontinued operations
    (1.87 )     (6.18 )     (0.47 )     (0.06 )
Total basic and diluted net loss per Class B share
  $ (2.09 )   $ (9.79 )   $ (0.56 )   $ (0.19 )
Average Shares Outstanding
                               
CLASS A COMMON STOCK
    25,147,824       24,600,795       25,392,962       24,690,089  
CLASS B COMMON STOCK
    319,388       319,388       319,388       319,388  
Cash dividends declared per share of:
                               
CLASS A COMMON STOCK
  $ -     $ 0.05     $ -     $ -  
CLASS B COMMON STOCK
  $ -     $ 0.05     $ -     $ -  
                                 
See Notes to Consolidated Financial Statements
 
 

 


BIMINI CAPITAL MANAGEMENT, INC.
 
CONSOLIDATED STATEMENT OF STOCKHOLDERS’ EQUITY (DEFICIT)
 
(Unaudited)
 
Nine Months Ended September 30, 2008
 
   
 
Common Stock,
Amounts at par value
 
Additional
Paid-in
 
Accumulated
     
 
Class A
 
Class B
 
Class C
 
Capital
 
Deficit
 
Total
 
Balances, December 31, 2007
  $ 24,861     $ 319     $ 319     $ 338,241,582     $ (315,383,637 )   $ 22,883,444  
Cumulative effect adjustment upon adoption of SFAS No. 159
    -       -       -       -       1,714,096       1,714,096  
Net loss
    -       -       -       -       (54,054,960 )     (54,054,960 )
Issuance of Class A common shares for board compensation and equity plan share exercises, net
    674       -       -       185,467       -       186,141  
Amortization of equity plan compensation
    -       -       -       583,352       -       583,352  
Equity plan shares withheld for statutory minimum withholding taxes
    -       -       -       (799 )     -       (799 )
Stock issuance costs, and other adjustments
    -       -       -       (943 )     -       (943 )
Balances, September 30, 2008
  $ 25,535     $ 319     $ 319     $ 339,008,659     $ (367,724,501 )   $ (28,689,669 )
                                                 
See Notes to Consolidated Financial Statements
 



 
 

 


BIMINI CAPITAL MANAGEMENT, INC.
 
CONSOLIDATED STATEMENTS OF CASH FLOWS
 
(Unaudited)
 
       
   
Nine Months Ended
 
   
September 30, 2008
   
September 30, 2007
 
CASH FLOWS FROM OPERATING ACTIVITIES:
           
Net loss
  $ (54,054,960 )   $ (245,260,641 )
Adjustments to reconcile net loss
to net cash  provided by operating activities:
               
Net  loss from discontinued operations
    48,292,910       154,808,659  
Other-than-temporary loss on mortgage backed securities
    -       55,250,278  
Amortization of premium and discount on mortgage-backed securities, net
    135,370       8,759,452  
Stock compensation
    769,493       2,076,036  
Depreciation and amortization
    107,601       627,044  
(Gain) loss on sale of mortgage-backed securities, net
    (755,135 )     20,492,779  
Fair value adjustment - held for trading securities
    1,166,408       (282,089 )
Fair value adjustment – available-for-sale securities
    -       1,707,840  
From trading securities:
               
Purchases
    (150,129,824 )     -  
Sales
    529,615,670       -  
Principal repayments
    85,732,371       -  
Changes in operating assets and liabilities:
               
Decrease in accrued interest receivable
    2,553,154       6,654,984  
Decrease in prepaids and other assets
    404,960       371,367  
Decrease in accrued interest payable
    (2,472,477 )     (9,993,867 )
Increase (decrease) in accounts payable, accrued expenses and other
    405,643       (122,961 )
NET CASH PROVIDED BY (USED IN) OPERATING ACTIVITIES
    461,771,184       (4,911,119 )
CASH FLOWS FROM INVESTING ACTIVITIES:
               
From available-for-sale securities:
               
Purchases
    -       (1,140,585,456 )
Sales
    -       1,896,831,041  
Principal repayments
    -       835,792,555  
Purchases of property and equipment, and other
    (12,152 )     (3,937 )
NET CASH (USED IN) PROVIDED BY INVESTING ACTIVITIES
    (12,152 )     1,592,034,203  
CASH FLOWS FROM FINANCING ACTIVITIES:
               
(Increase)/decrease in restricted cash
    8,550,000       (35,300,000 )
Proceeds from repurchase agreements
    3,505,827,617       13,167,044,670  
Principal payments on repurchase agreements
    (3,983,297,569 )     (14,697,237,320 )
Stock issuance costs, and other adjustments
    (943 )     -  
Cash dividends paid
    -       (2,534,582 )
NET CASH USED IN FINANCING ACTIVITIES
    (468,920,895 )     (1,568,027,232 )
CASH FLOWS FROM DISCONTINUED OPERATIONS:
               
Net cash provided by operating activities
    10,253,631       734,846,245  
Net cash provided by investing activities
    -       1,195,582  
Net cash used in financing activities
    (18,000,000 )     (813,015,954 )
NET CASH USED IN DISCONTINUED OPERATIONS
    (7,746,369 )     (76,974,127 )
                 
NET DECREASE IN CASH AND CASH EQUIVALENTS
    (14,908,232 )     (57,878,275 )
CASH AND CASH EQUIVALENTS, Beginning of the period
    27,284,760       82,751,795  
CASH AND CASH EQUIVALENTS, End of the period
  $ 12,376,528     $ 24,873,520  
                 
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
               
Cash paid during the period for interest
  $ 27,289,202     $ 108,551,200  
                 
SUPPLEMENTAL SCHEDULE OF NONCASH INVESTING ACTIVITIES:
               
Securities transferred from available-for-sale to trading (at fair value)
  $ 1,714,096     $ -  
See Notes to Consolidated Financial Statements
 




BIMINI CAPITAL MANAGEMENT, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
September 30, 2008


NOTE 1.   ORGANIZATION AND SIGNIFICANT ACCOUNTING POLICIES

Organization and Business Description

Bimini Capital Management, Inc., a Maryland corporation (“Bimini Capital”), was originally formed in September 2003 as Bimini Mortgage Management, Inc. (“Bimini Mortgage”) for the purpose of creating and managing a leveraged investment portfolio consisting of residential mortgage-backed securities (“MBS”). Bimini Capital’s website is located at http://www.biminicapital.com. On February 10, 2006, Bimini Mortgage changed its name to Opteum Inc. (“Opteum”). On September 28, 2007, Opteum changed its name to Bimini Capital Management, Inc.

On November 3, 2005, Bimini Capital acquired Opteum Financial Services, LLC, and it became a wholly-owned taxable REIT subsidiary of Bimini Capital. This entity, which was previously referred to as “OFS,” was renamed Orchid Island TRS, LLC effective July 3, 2007.   Hereinafter, any historical mention, discussion or references to Opteum Financial Services, LLC or to OFS (such as in previously filed documents or Exhibits) now means Orchid Island TRS, LLC or “OITRS.”

On December 21, 2006, Bimini Capital sold to Citigroup Global Markets Realty Corp. (“Citigroup Realty”) a Class B non-voting limited liability company membership interest in OITRS, representing 7.5% of all of OITRS’s outstanding limited liability company membership interests, for $4.1 million.  On May 27, 2008, Bimini Capital repurchased Citigroup Realty’s interest in OITRS for $0.05 million.

On April 18, 2007, the Board of Managers of OITRS, at the recommendation of the Board of Directors of Bimini Capital, approved the closure of OITRS’s wholesale and conduit mortgage loan origination channels in the second quarter of 2007.  Also, during the second and third quarters of 2007, substantially all of the other operating assets of OITRS were sold.   Therefore, all of OITRS’s assets are considered held for sale, and OITRS is reported as a discontinued operation for all periods presented following applicable accounting standards (see Note 11). For financial statement presentation purposes, Bimini Capital is now operating in a single business segment.

Bimini Capital has elected to be taxed as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”).  As a REIT, Bimini Capital is generally not subject to federal income tax on its REIT taxable income provided that it distributes to its stockholders at least 90% of its REIT taxable income on an annual basis. OITRS has elected to be treated as a taxable REIT subsidiary and, as such, is subject to federal, state and local income taxation.  In addition, the ability of OITRS to deduct interest paid or accrued to Bimini Capital for federal, state and local tax purposes is subject to certain limitations.

As used in this document, discussions related to Bimini Capital, the parent company, the registrant, and to REIT qualifying activities or the general management of Bimini Capital’s portfolio of MBS refer to Bimini Capital Management, Inc.  Further, discussions related to Bimini Capital’s taxable REIT subsidiary or non-REIT eligible assets refer to OITRS and its consolidated subsidiaries. Discussions relating to the “Company” refer to the consolidated entity (the combination of Bimini Capital and OITRS). The assets and activities that are not REIT eligible, such as mortgage origination, acquisition and servicing activities, were formerly conducted by OITRS and are now reported as discontinued operations.

Liquidity

The financing market utilized by the Company to fund its MBS portfolio, as well as the market for MBS securities, have deteriorated materially since June 30, 2008. Moreover, the turmoil that originated in the MBS market has now spread into many other financial markets as well as the global real economy. The disruptions in the market have prompted unprecedented intervention on the part of most of the world’s central banks, the Congress of the United States, the US Treasury and the Federal Reserve in an effort to restore stability. In spite of these efforts market conditions are extremely volatile, credit is very tight and it is unknown at this time when and to what extent market conditions will stabilize and return to normal. These conditions have impacted the Company and are expected to continue to impact the Company.

At September 30, 2008 the Company had outstanding $200.7 million of obligations under repurchase agreements with maturities through December 2008. On October 27, 2008, $29.3 million of these repurchase agreement obligations matured and could not be extended.  The Company was forced to sell the associated MBS assets pledged to satisfy the obligation.  Should the Company be unable to extend the maturity of the remaining repurchase obligations, it may be forced to sell additional assets, which may result in losses upon such sales.  Accordingly, the Company has taken steps to augment its existing leveraged MBS portfolio with an alternative investment strategy since sufficient repurchase agreement funding is not available. The Company is currently employing an investment strategy that utilizes derivative mortgage backed securities collateralized by MBS with comparable borrower and prepayment characteristics to the securities currently in the portfolio. Such securities are not funded in the repurchase market but instead are owned free and clear.  However, if cash resources are, at any time, insufficient to satisfy the Company’s liquidity requirements, such as when cash flow from operations are materially negative, the Company may be required to pledge additional assets to meet margin calls, liquidate assets, sell additional debt or equity securities or pursue other financing alternatives. The Company presently believes that its junior subordinated debt capital, combined with the cash flow from operations and the utilization of borrowings, will be sufficient to enable the Company to meet its anticipated liquidity requirements. Nonetheless, no assurances can be made regarding the Company's ability to satisfy its liquidity and working capital requirements going forward.

Basis of Presentation and Use of Estimates

The accompanying interim financial statements reflect all adjustments, consisting of normal recurring items that, in the opinion of management, are necessary for a fair presentation of the Company’s financial position, results of operations, statement of stockholders’ equity (deficit) and cash flows for the periods presented. These interim financial statements have been prepared in accordance with disclosure requirements for interim financial information and accordingly, they do not include all of the information and footnotes required by United States generally accepted accounting principles (“GAAP”) for annual financial statements. The operating results for the interim period ended September 30, 2008 are not necessarily indicative of results that can be expected for the year ended December 31, 2008. The consolidated balance sheet as of December 31, 2007 was derived from audited financial statements included in the Company’s 2007 Annual Report on Form 10-K but does not include all disclosures required by GAAP.  The financial statements included as part of this Form 10-Q should be read in conjunction with the financial statements and notes thereto included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2007.

The preparation of interim financial statements 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 period. Significant estimates affecting the accompanying financial statements include the fair values of MBS, and certain discontinued operations related items including the deferred tax asset valuation allowance, the valuation allowance on mortgage loans held for sale, the valuation of retained interests, trading and the valuation of mortgage servicing rights.

Consolidation

The accompanying consolidated financial statements include the accounts of Bimini Capital and its wholly-owned subsidiary, OITRS, as well as the wholly-owned and majority-owned subsidiaries of OITRS.  OITRS is reported as a discontinued operation for all periods presented.  All inter-company accounts and transactions have been eliminated from the consolidated financial statements.

As further described in Note 5, Bimini Capital has a common share investment in two trusts used in connection with the issuance of Bimini Capital’s junior subordinated notes.  Pursuant to the accounting guidance provided in Financial Accounting Standards Board (“FASB”) Interpretation (“FIN”) No. 46, Consolidation of Variable Interest Entities, Bimini Capital’s common share investments in the trusts are not consolidated in the financial statements of Bimini Capital, and accordingly, these investments are accounted for on the equity method.

Discontinued Operations

During the second quarter of 2007, the Company closed OITRS’s wholesale and conduit mortgage loan origination channels and sold substantially all of the operating assets of OITRS. Accordingly, all current and prior financial information related to OITRS and the mortgage banking business has been presented as discontinued operations in the accompanying consolidated financial statements. Refer to Note 11 - Discontinued Operations.

Cash and Cash Equivalents

Cash and cash equivalents include cash on hand and highly liquid investments with original maturities of three months or less. The carrying amount of cash equivalents approximates its fair value as of September 30, 2008 and December 31, 2007. Restricted cash represents cash held on deposit as collateral with certain repurchase agreement counterparties (i.e. lenders). Such amounts may be used to make principal and interest payments on the related repurchase agreements.

Valuation of Mortgage-Backed Securities

At September 30, 2008, the valuation of the Company’s investments in MBS is governed by Statement of Financial Accounting Standards (“SFAS”) No. 157, Fair Value Measurements.  The definition of fair value in SFAS No. 157 focuses on the price that would be received to sell the asset or paid to transfer the liability (i.e., an exit price), rather than the price that would be paid to acquire the asset or received to assume the liability (i.e., an entry price).  All MBS securities held by Bimini Capital are reflected in the Company's financial statements at their estimated fair value at September 30, 2008. Estimated fair values for MBS are based on the average of third-party broker quotes received and/or independent pricing sources when available.

In accordance with SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities, the Company classified its investments in MBS as either trading, available-for-sale or held-to-maturity. Management determined the appropriate classification of the securities at the time they were acquired and evaluates the appropriateness of such classifications at each balance sheet date. The Company classifies all of its securities acquired prior to June 30, 2007 as available-for-sale.  All securities acquired after June 30, 2007 were classified as trading.  On January 1, 2008, in connection with the adoption of SFAS No. 159, The Fair Value Option for Financial Assets and Financial Liabilities-Including an amendment of FASB Statement 115, the Company transferred its remaining available-for-sale securities to trading and accordingly, recognized a $1.7 million fair value adjustment.

The Company’s investments in mortgage-related derivatives are carried at fair value on the balance sheet and are included with mortgage-backed securities.

 
Property and Equipment, net

Property and equipment, net, consisting primarily of computer equipment with a depreciable life of 3 years, office furniture and equipment with a depreciable life of 8 to 20 years, leasehold improvements with a depreciable life of 15 years, land which has no depreciable life and building with a depreciable life of 30 years, is recorded at acquisition cost and depreciated using the straight-line method over the estimated useful lives of the assets.

Bimini Capital’s property and equipment as of September 30, 2008 and December 31, 2007, is net of accumulated depreciation of $0.5 million and $0.4 million, respectively. Depreciation expense for the nine and three months ended September 30, 2008 was $0.1 million and $0.02 million, respectively.

Repurchase Agreements

The Company finances the acquisition of the majority of its MBS through the use of repurchase agreements. Under these repurchase agreements, the Company sells securities to a repurchase counterparty and agrees to repurchase the same securities in the future for a price that is higher than the original sales price. The difference between the sales price that the Company receives and the repurchase price that the Company pays represents interest paid to the repurchase counterparty. Although structured as a sale and repurchase obligation, a repurchase agreement is accounted for as a financing under which the Company pledges its securities as collateral to secure a loan which is equal in value to a specified percentage of the estimated fair value of the pledged collateral. The Company retains beneficial ownership of the pledged collateral. At the maturity of a repurchase agreement, the Company is required to repurchase the underlying MBS and concurrently receives back its pledged collateral from the repurchase counterparty or, with the consent of the repurchase counterparty, the Company may renew such agreement at the then prevailing rate. These repurchase agreements may require the Company to pledge additional assets to the repurchase counterparty in the event the estimated fair value of the existing pledged collateral has declined. For the nine months ended September 30, 2008 and for the year ended December 31, 2007, the Company did not have any margin calls on its repurchase agreements that it was not able to satisfy with either cash or additional pledged collateral.

Original terms to maturity of the Company's repurchase agreements generally, but not always, range from one month to twelve months; however, the Company is not precluded from entering into repurchase agreements with shorter or longer maturities. Repurchase agreement transactions are reflected in the financial statements at their cost. Should a counterparty decide not to renew a repurchase agreement at maturity, the Company must either refinance elsewhere or be in a position to satisfy this obligation. If, during the term of a repurchase agreement, a counterparty files for bankruptcy, the Company could experience difficulty recovering its pledged assets and may have an unsecured claim against the counterparty's assets for the difference between the amount received by the Company and the estimated fair value of the collateral pledged to such counterparty.

Interest Income Recognition on MBS
 
All securities in the MBS portfolio as of September 30, 2008 are classified as held for trading securities. All securities are either MBS pass through securities, interest only securities or inverse interest only securities. Income on MBS pass through securities classified as held for trading is based on the stated interest rate of the security. Premium or discount present at the date of purchase is not amortized.  For interest only securities classified as held for trading, the income is accrued based on the carrying value and the effective yield.  As cash is received it is first applied to accrued interest and then to reduce the carrying value.  At each reporting date, the effective yield is adjusted prospectively from the reporting period based on the new estimate of prepayments.  The new effective yield is calculated based on the carrying value at the end of the previous reporting period, the new prepayment estimates and the contractual terms of the security.  For inverse interest only securities effective yield and income recognition calculations also take into account the index value applicable to the security.  Owing to the fact realized cash flows for inverse interest only securities are driven by both prepayments and the index value, yield calculations have to take into account the impact of the index value on future cash flows.  In accordance with Emerging Issues Task Force 99-20 (“EITF 99-20”), effective yield is derived from projected future cash flows.  Changes in fair value during the period are recorded in earnings and reported as fair value adjustment-held for trading securities in the accompanying consolidated statement of operations.

 
MBS are recorded at cost on the date the MBS are purchased or sold, which is generally the trade date. Realized gains or losses from MBS transactions are determined based on the specific identified carrying value of the MBS. Prior to January 1, 2008, with respect to securities classified as available-for-sale, premiums and discounts associated with the purchase of the MBS were amortized or accreted into interest income over the estimated lives of the MBS adjusted for estimated prepayments using the effective interest method. Adjustments were made using the retrospective method to the effective interest computation each reporting period. The adjustment was based on the actual prepayment experiences to date and the present expectation of future prepayments of the underlying mortgages and/or the current value of the indices underlying adjustable rate mortgage securities versus index values in effect at the time of purchase or the last adjustment period.

Comprehensive Loss
 
In accordance with SFAS No. 130, Reporting Comprehensive Income, the Company is required to separately report its comprehensive income (loss) each reporting period. Other comprehensive income refers to revenue, expenses, gains and losses that, under GAAP, are included in comprehensive income but are excluded from net income, as these amounts are recorded directly as an adjustment to stockholders' equity. Other comprehensive income for the period ended September 30, 2007 arose from unrealized gains from changes in market values of securities classified as available-for-sale.  Comprehensive loss is as follows: 

(in thousands)

   
(Unaudited)
 
   
Nine Months Ended September 30,
   
Three Months Ended September 30,
 
   
2008
   
2007
   
2008
   
2007
 
Net loss
  $ (54,054 )   $ (245,261 )   $ (14,391 )   $ (4,723 )
Reclassify net realized loss on MBS
    -       19,389       -       -  
Reclassify other-than-temporary loss on MBS
    -       55,250       -       -  
Unrealized gain on available-for-sale securities, net
    -       2,135       -       -  
 Comprehensive loss
  $ (54,054 )   $ (168,487 )   $ (14,391 )   $ (4,723 )

Stock-Based Compensation

The Company utilizes SFAS No. 123(R), Share-Based Payment, to account for stock-based compensation using the fair value based method prescribed by SFAS No. 123, Accounting for Stock-Based Compensation. For stock and stock-based awards issued to employees, a compensation charge is recorded against earnings based on the fair value of the award. For transactions with non-employees in which services are performed in exchange for the Company's common stock or other equity instruments, the transactions are recorded on the basis of the fair value of the service received or the fair value of the equity instruments issued, whichever is more readily measurable at the date of issuance. Stock-based compensation was approximately $0.8 million and $0.2 million for the nine and three months ended September 30, 2008 and $2.3 million and $0.8 million for the nine and three months ended September 30, 2007, respectively.

Earnings Per Share

The Company follows the provisions of SFAS No. 128, Earnings per Share, and the guidance provided in the FASB's Emerging Issues Task Force (“EITF”) Issue No. 03-6,  Participating Securities and the Two-Class Method under FASB Statement No. 128, Earnings Per Share, which requires companies with complex capital structures, common stock equivalents or two (or more) classes of securities that participate in the declared dividends to present both basic and diluted earnings per share (“EPS”) on the face of the consolidated statement of operations. Basic EPS is calculated as income available to common stockholders divided by the weighted average number of common shares outstanding during the period. Diluted EPS is calculated using the “if converted” method for common stock equivalents. However, the common stock equivalents are not included in computing diluted EPS if the result is anti-dilutive.

Income Taxes

Bimini Capital has elected to be taxed as a REIT under the Code. As further described in Note 11, OITRS is a taxpaying entity for income tax purposes and is taxed separately from Bimini Capital. Bimini Capital will generally not be subject to federal income tax on its REIT taxable income to the extent that Bimini Capital distributes its REIT taxable income to its stockholders and satisfies the ongoing REIT requirements, including meeting certain asset, income and stock ownership tests. A REIT must generally distribute at least 90% of its REIT taxable income to its stockholders, of which 85% generally must be distributed within the taxable year, in order to avoid the imposition of an excise tax. The remaining balance may be distributed up to the end of the following taxable year, provided the REIT elects to treat such amount as a prior year distribution and meets certain other requirements.

Recent Accounting Pronouncements

In June 2008, the FASB issued FSP EITF 03-6-1, Determining Whether Instruments Granted in Share-Based Payment Transactions Are Participating Securities.  The FSP addresses whether instruments granted in share-based payment transactions are participating securities prior to vesting and, therefore, need to be included in the earnings allocation in computing earnings per share (EPS) under the two-class method.   The FASB Emerging Issues Task Force (EITF) in Issue No. 03-6, Participating Securities and the Two-Class Method under FASB Statement No. 128, previously reached a consensus that, share-based payment awards containing a right to receive dividends declared on common stock represent participating securities if such awards are fully vested. Issue No. 03-6 does not, however, provide guidance on share-based payment awards that are not fully vested (i.e., the requisite service for vesting has not yet been rendered). The FSP has been issued to clarify that unvested instruments granted in share-based payment transactions containing non-forfeitable rights to dividends or dividend equivalents (whether paid or unpaid) represent participating securities that should be included in the computation of EPS according to the two-class method.  This FSP shall be effective for financial statements issued for fiscal years beginning after December 15, 2008, and interim periods within those years. Early application is not permitted.  The Company has not issued share-based awards containing non-forfeitable rights to dividends or dividend equivalents; therefore, the adoption of FSP EITF 03-6-1 is not expected to have any impact.

In March 2008, the FASB issued statement No. 161, Disclosures about Derivative Instruments and Hedging Activities - An Amendment of FASB Statement No. 133 (“SFAS 161”). This statement revises the requirements for the disclosure of derivative instruments and hedging activities that include the reasons a company uses derivative instruments, how derivative instruments and related hedged items are accounted under SFAS 133 and how derivative instruments and related hedged items affect a company's financial position, financial performance and cash flows. SFAS 161 will be effective in the fourth quarter of fiscal 2009. The Company is currently evaluating the impact of adopting SFAS 161 and does not anticipate a material effect.

In February 2008, the FASB issued FSP FAS 140-3, Accounting for Transfers of Financial Assets and Repurchase Financing Transactions. The FSP addresses whether there are circumstances that would permit a transferor and a transferee to evaluate the accounting for the transfer of a financial asset separately from a repurchase financing when the counterparties to the two transactions are the same. The FSP presumes that the initial transfer of a financial asset and a repurchase financing are considered part of the same arrangement (a linked transaction) under FASB Statement No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities (Statement 140). However, if certain criteria specified in the FSP are met, the initial transfer and repurchase financing may be evaluated separately under Statement 140.  The FSP is effective for fiscal years beginning after November 15, 2008, and interim periods within those fiscal years. Earlier application is not permitted.  The Company is currently evaluating FSP FAS 140-3 but does not expect its application to have a significant impact on its financial reporting. 

In December 2007, the FASB issued statement No. 160, Noncontrolling Interests in Consolidated Financial Statements (“SFAS 160”), amendment to ARB No. 51.  This standard establishes accounting and reporting standards that require: (1) the ownership interests in subsidiaries held by parties other than the parent be clearly identified, labeled, and presented in the consolidated statement of financial position within equity, but separate from the parent’s equity; (2) the amount of consolidated net income attributable to the parent and to the noncontrolling interest be clearly identified and presented on the face of the consolidated statement of income; (3) changes in a parent’s ownership interest while the parent retains its controlling financial interest in its subsidiary be accounted for consistently; (4) when a subsidiary is deconsolidated, any retained noncontrolling equity investment in the former subsidiary be initially measured at fair value; and (5) entities provide sufficient disclosures that clearly identify and distinguish between the interests of the parent and the interests of the noncontrolling owners.  SFAS 160 is effective as of the beginning of the fiscal year that begins on or after December 15, 2008.  Management is currently evaluating the effects, if any, that SFAS 160 will have upon adoption of this standard.

In June 2007, the FASB ratified the consensus reached in EITF 06-11, Accounting for Income Tax Benefits of Dividends on Share-Based Payment Awards. EITF 06-11 applies to entities that have share-based payment arrangements that entitle employees to receive dividends or dividend equivalents on equity-classified nonvested shares when those dividends or dividend equivalents are charged to retained earnings and result in an income tax deduction. Entities that have share-based payment arrangements that fall within the scope of EITF 06-11 will be required to increase capital surplus for any realized income tax benefit associated with dividends or dividend equivalents paid to employees for equity classified nonvested equity awards. Any increase recorded to capital surplus is required to be included in an entity’s pool of excess tax benefits that are available to absorb potential future tax deficiencies on share-based payment awards. The Company adopted EITF 06-11 on January 1, 2008 for dividends declared on share-based payment awards subsequent to this date. The adoption did not have a material impact.

In February 2007, the FASB issued statement No. 159, The Fair Value Option for Financial Assets and Financial Liabilities — Including an Amendment of FASB Statement No. 115 (“SFAS 159”).  This standard permits an entity to measure financial instruments and certain other items at estimated fair value. Most of the provisions of SFAS No. 159 are elective; however, the amendment to SFAS No. 115, Accounting for Certain Investments in Debt and Equity Securities, applies to all entities that own trading and available-for-sale securities.  The fair value option created by SFAS 159 permits an entity to measure eligible items at fair value as of specified election dates. The fair value option is generally applied instrument by instrument, is irrevocable unless a new election date occurs, and must be applied to the entire instrument and not to only a portion of the instrument.  SFAS 159 is effective as of the beginning of the first fiscal year that begins after November 15, 2007.  On January 1, 2008, the Company elected the fair value option for its available-for-sale portfolio of mortgage-backed securities. Previously, these securities were considered to be other than temporarily impaired and carried at lower-of-cost or market. As of the adoption date, the carrying value of the existing mortgage-backed securities classified as available-for-sale were adjusted to fair value through a cumulative-effect adjustment to the beginning balance of retained earnings. This adjustment represented an increase in the carrying value of the securities of approximately $1.7 million.

      In September 2006, the FASB issued SFAS No. 157, Fair Value Measurements, to eliminate the diversity in practice that exists due to the different definitions of fair value that are dispersed among the many accounting pronouncements that require fair value measurements, and the limited guidance for applying those definitions.  SFAS 157 is effective for financial statements issued for fiscal years beginning after November 15, 2007, and interim periods within those fiscal years.  The Company adopted SFAS 157 on January 1, 2008, and the adoption did not have a material impact on financial condition or results of operations.

NOTE 2.   MORTGAGE-BACKED SECURITIES

As of December 31, 2007, all of Bimini Capital's MBS were classified as either trading or available-for-sale. On January 1, 2008, the entire available-for-sale securities portfolio was transferred to trading in conjunction with the Company’s comprehensive review of its balance sheet management strategies and adoption of SFAS No. 159.  Accordingly, fluctuations in the portfolio’s fair value are recorded directly to income effective January 1, 2008.

The following are the carrying values of Bimini Capital's MBS portfolio as of September 30, 2008 and December 31, 2007:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Hybrid Arms
  $ 62,915     $ 398,982  
Adjustable Rate Mortgages
    84,387       177,608  
Fixed Rate Mortgages
    65,244       113,989  
MBS Derivatives
    14,022       -  
Total
  $ 226,568     $ 690,579  

The following table presents the components of the carrying value of Bimini Capital’s MBS portfolio as of September 30, 2008 and December 31, 2007:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Available-for-Sale Securities
           
Principal balance
  $ -     $ 291,579  
Unamortized premium
    -       3,134  
Unaccreted discount
    -       (309 )
Held for Trading Securities
               
Principal balance
    210,374       385,849  
Premium
    2,440       10,326  
Discount
    (268 )     -  
Trading Securities – MBS Derivatives
    14,022       -  
Carrying value/estimated fair value
  $ 226,568     $ 690,579  

As of September 30, 2008, all of Bimini Capital's MBS investments have contractual maturities greater than 36 months. Actual maturities of MBS investments are generally shorter than stated contractual maturities. Actual maturities of Bimini Capital's MBS investments are affected by the contractual lives of the underlying mortgages, periodic payments of principal, and prepayments of principal.

NOTE 3.   EARNINGS PER SHARE

The Company follows the provisions of SFAS No. 128, Earnings per Share, and the guidance provided in the FASB's Emerging Issues Task Force (“EITF”) Issue No. 03-6, Participating Securities and the two-class method under FASB Statement No. 128, Earnings Per Share, which requires companies with complex capital structures, common stock equivalents, or two classes of participating securities to present both basic and diluted EPS on the face of the statement of operations. Basic EPS is calculated as income available to common stockholders divided by the weighted average number of common shares outstanding during the period. Diluted EPS is calculated using the “if converted” method for common stock equivalents.

Shares of Class B Common Stock, participating and convertible into Class A Common Stock, are entitled to receive dividends in an amount equal to the dividends declared on each share of Class A Common Stock if, and when authorized and declared by the Board of Directors. Following the provisions of EITF 03-6, the Class B Common Stock is included in the computation of basic EPS using the two-class method, and consequently is presented separately from Class A Common Stock. Class B common shares are not included in the computation of diluted Class A EPS as the conditions for conversion to Class A shares were not met.

The Class C common shares are not included in the basic EPS computation as these shares do not have participation rights. The Class C common shares totaling 319,388 are not included in the computation of diluted Class A EPS as the conditions for conversion to Class A shares were not met.

      The Company has dividend eligible stock incentive plan shares that were outstanding during the nine and three months ended September 30, 2008 and 2007. These stock incentive plan shares have dividend participation rights, but no contractual obligation to share in losses. Since there is no such obligation, these incentive plan shares are not included, pursuant to EITF 03-6, in the nine and three months ended September 30, 2008 and 2007, basic EPS computations for the Class A Common Stock, even though they are participating securities. For the computation of diluted EPS for the Class A Common Stock for the periods ended September 30, 2008 and 2007, 21,658 and 259,016 phantom shares, respectively, are excluded as their inclusion would be anti-dilutive.

The table below reconciles the numerators and denominators of the basic and diluted EPS.

(in thousands, except per share data)

   
(Unaudited)
   
(Unaudited)
 
   
Nine Months Ended September 30,
   
Three Months Ended September 30,
 
   
2008
   
2007
   
2008
   
2007
 
Basic and diluted net loss per Class A common share:
                       
Numerator: net loss allocated to the Class A common shares
  $ (53,387 )   $ (242,138 )   $ (14,213 )   $ (4,663 )
Denominator: basic and diluted:
                               
Class A common shares outstanding at the balance sheet date
    25,535       24,765       25,535       24,765  
Effect of weighting
    (387 )     (164 )     (142 )     (75 )
Weighted average shares-basic and diluted
    25,148       24,601       25,393       24,690  
Basic and diluted net loss  per Class A common share
  $ (2.12 )   $ (9.84 )   $ (0.56 )   $ (0.19 )
Basic and diluted net loss per Class B common share:
                               
Numerator: net loss allocated to Class B common shares
  $ (668 )   $ (3,123 )   $ (178 )   $ (60 )
Denominator: basic and diluted:
                               
Class B common shares outstanding at the balance sheet date
    319       319       319       319  
Effect of weighting
    -       -       -       -  
Weighted average shares-basic and diluted
    319       319       319       319  
Basic and diluted net loss per Class B common share
  $ (2.09 )   $ (9.79 )   $ (0.56 )   $ (0.19 )

NOTE 4.   REPURCHASE AGREEMENTS

Bimini Capital has entered into repurchase agreements to finance most of its MBS purchases. The repurchase agreements are short-term borrowings that bear interest at rates that have historically moved in close relationship to London Interbank Offered Rates (“LIBOR”). As of September 30, 2008, Bimini Capital had outstanding repurchase obligations of $200.7 million with a net weighted average borrowing rate of 2.99% and these obligations were collateralized by MBS with a fair value of $208.9 million. As of December 31, 2007, Bimini Capital had outstanding repurchase obligations of $678.2 million with a net weighted average borrowing rate of 5.07%. These obligations were collateralized by MBS with a fair value of $683.9 million.
 
As of September 30, 2008 and December 31, 2007, Bimini Capital’s repurchase agreements and the collateral agreements thereon had remaining maturities as summarized below:

(in thousands)

   
OVERNIGHT
(1 DAY OR LESS)
   
BETWEEN 2 AND
30 DAYS
   
BETWEEN 31 AND
90 DAYS
   
GREATER THAN
90 DAYS
   
TOTAL
 September 30, 2008
                           
Agency-Backed Mortgage-Backed Securities:
                           
Amortized cost of securities sold, including accrued interest receivable
  $ -     $ 89,128     $ 119,871     $ -     $ 208,999  
Fair market value of securities sold, including accrued interest receivable
  $ -     $ 89,128     $ 119,871     $ -     $ 208,999  
Repurchase agreement liabilities associated with these securities
  $ -     $ 85,532     $ 115,176     $ -     $ 200,708  
Net weighted average borrowing rate
    -       3.46 %     2.65 %     -       2.99 %
 December 31, 2007
                                       
Agency-Backed Mortgage-Backed Securities:
                                       
Amortized cost of securities sold, including accrued interest receivable
  $ -     $ 249,124     $ 37,559     $ 397,260     $ 683,943  
Fair market value of securities sold, including accrued interest receivable
  $ -     $ 249,124     $ 37,559     $ 397,260     $ 683,943  
Repurchase agreement liabilities associated with these securities
  $ -     $ 244,379     $ 37,577     $ 396,222     $ 678,178  
Net weighted average borrowing rate
    -       5.21 %     5.34 %     4.96 %     5.07 %

The following summarizes information regarding the Company’s amounts at risk with individual counterparties greater than 10% of the Company’s equity as of September 30, 2008 and December 31, 2007.

(in thousands)

Repurchase Agreement Counterparties
 
Amount
at Risk(1)
   
Weighted Average
Maturity of
Repurchase
Agreements
in Days
 
September 30, 2008
           
MF Global Inc.
  $ 6,461       47  
RBS Greenwich Capital
    1,998       27  
December 31, 2007
               
Deutsche Bank Securities, Inc.
  $ 8,823       193  
Goldman Sachs
    2,931       19  

 (1)
Equal to the fair value of securities sold, plus accrued interest income, minus the sum of repurchase agreement liabilities, plus accrued interest expense.

 
NOTE 5.  TRUST PREFERRED SECURITIES

At September 30, 2008, Bimini Capital sponsored two statutory trusts, of which 100% of the common equity is owned by the Company, formed for the purpose of issuing trust preferred capital securities to third-party investors and investing the proceeds from the sale of such capital securities solely in junior subordinated debt securities of the Company. The debt securities held by each trust are the sole assets of that trust. Obligations related to these statutory trusts are presented below.

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Junior subordinated notes owed to Bimini Capital Trust I (BCTI)
  $ 51,550     $ 51,550  
Junior subordinated notes owed to Bimini Capital Trust II (BCTII)
  $ 51,547     $ 51,547  

The BCTI trust preferred securities and Bimini Capital's BCTI Junior Subordinated Notes have a fixed rate of interest until March 30, 2010, in the case of Series A Preferred Securities, and until April 30, 2010, in the case of Series B Preferred Securities, of 7.61% and thereafter, through maturity in 2035, the rate will float at a spread of 3.30% over the prevailing three-month LIBOR rate.  The BCTI trust preferred securities and Bimini Capital's BCTI Junior Subordinated Notes require quarterly interest distributions and are redeemable at Bimini Capital's option, in whole or in part and without penalty, beginning March 30, 2010, in the case of Series A Preferred Securities, and beginning April 30, 2010, in the case of Series B Preferred Securities and at any date thereafter.  Bimini Capital's BCTI Junior Subordinated Notes are subordinate and junior in right of payment of all present and future senior indebtedness.
 
The BCTII trust preferred securities and Bimini Capital's BCTII Junior Subordinated Notes have a fixed rate of interest until December 15, 2010, of 7.8575% and thereafter, through maturity in 2035, the rate will float at a spread of 3.50% over the prevailing three-month LIBOR rate. The BCTII trust preferred securities and Bimini Capital's BCTII Junior Subordinated Notes require quarterly interest distributions and are redeemable at Bimini Capital's option, in whole or in part and without penalty, beginning December 15, 2010, and at any date thereafter. Bimini Capital's BCTII Junior Subordinated Notes are subordinate and junior in right of payment of all present and future senior indebtedness.

Each trust is a variable interest entity pursuant to FIN No. 46 because the holders of the equity investment at risk do not have adequate decision making ability over the trust's activities. Since Bimini Capital's investment in each trust's common equity securities was financed directly by the applicable trust as a result of its loan of the proceeds to Bimini Capital, that investment is not considered to be an equity investment at risk pursuant to FIN No. 46. Since Bimini Capital's common share investments in BCTI and BCTII are not a variable interest, Bimini Capital is not the primary beneficiary of the trusts. Therefore, Bimini Capital has not consolidated the financial statements of BCTI and BCTII into its financial statements.  Based on the aforementioned accounting guidance, the accompanying consolidated financial statements present Bimini Capital's BCTI and BCTII Junior Subordinated Notes issued to the trusts as liabilities and Bimini Capital's investments in the common equity securities of BCTI and BCTII as assets. For financial statement purposes, Bimini Capital records payments of interest on the Junior Subordinated Notes issued to BCTI and BCTII as interest expense.

NOTE 6.  CAPITAL STOCK

During the nine and three months ended September 30, 2008, the Company issued a total of 568,565 and 141,950 shares of Class A Common Stock to its independent directors for the payment of director fees for services rendered.

During the nine and three months ended September 30, 2008, the Company issued 104,847 and 42,666 shares of its Class A Common Stock to employees pursuant to the terms of the stock incentive plan phantom share grants (see Note 7).

NOTE 7.    STOCK INCENTIVE PLANS
 
On December 1, 2003, Bimini Capital adopted the 2003 Long Term Incentive Compensation Plan (the “2003 Plan”) to provide Bimini Capital with the flexibility to use stock options and other awards as part of an overall compensation package to provide a means of performance-based compensation to attract and retain qualified personnel. The 2003 Plan was amended and restated in March 2004. Key employees, directors and consultants are eligible to be granted stock options, restricted stock, phantom shares, dividend equivalent rights and other stock-based awards under the 2003 Plan. Subject to adjustment upon certain corporate transactions or events, a maximum of 4,000,000 shares of the Class A Common Stock (but not more than 10% of the Class A Common Stock outstanding on the date of grant) may be subject to stock options, shares of restricted stock, phantom shares and dividend equivalent rights under the 2003 Plan.

Phantom share awards represent a right to receive a share of Bimini's Class A Common Stock.  These awards do not have an exercise price and are valued at the fair value of Bimini Capital’s Class A Common Stock at the date of the grant. The grant date value is being amortized to compensation expense on a straight-line basis over the vesting period of the respective award.  The phantom shares vest, based on the employees’ continuing employment, following a schedule as provided in the grant agreements, for periods through December 31, 2010. The Company recognizes compensation expense over the vesting period. Compensation expense recognized for phantom shares during the nine and three months ended September 30, 2008 and 2007 totaled approximately, $0.6 and $0.2 million and $2.2 and $0.8 million, respectively. Phantom share awards may or may not include dividend equivalent rights.  Dividends paid on unsettled phantom shares are charged to retained earnings when declared.

A summary of phantom share activity during the nine month periods ended September 30, 2008 and 2007 is presented below:

   
Nine Months Ended September 30,
 
   
2008
   
2007
 
   
Shares
   
Weighted-Average Grant-Date Fair Value
   
Shares
   
Weighted-Average Grant-Date Fair Value
 
Nonvested, at January 1
    127,373     $ 11.36       339,862     $ 12.60  
Granted
    250,000       0.26       25,607       7.61  
Vested
    (106,958 )     6.00       (164,729 )     13.08  
Forfeited
    (106,256 )     5.82       (16,550 )     8.78  
Nonvested, at September 30
    164,159     $ 1.54       184,190     $ 11.82  

There were a total of 0 and 75,326 phantom shares that were vested and unissued as of September 30, 2008 and 2007, respectively. The total number of outstanding (vested and nonvested) phantom share awards that include dividend equivalent rights as of September 30, 2008 and 2007 were 21,658 and 259,016, respectively. As of September 30, 2008, there was approximately $165,000 of total unrecognized compensation cost related to nonvested phantom share awards.  The cost is expected to be recognized over a weighted-average period of 11.3 months.

Bimini Capital also has adopted the 2004 Performance Bonus Plan (the “Performance Bonus Plan”). The Performance Bonus Plan is an annual bonus plan that permits the issuance of the Company’s Class A Common Stock in payment of stock-based awards made under the plan.  No stock-based awards have been made under and no shares of the Company’s stock have been issued under the Performance Bonus Plan.

NOTE 8.  COMMITMENTS AND CONTINGENCIES

Litigation Contingencies.> The Company is involved in various lawsuits and claims, both actual and potential, including some that it has asserted against others, in which monetary damages and other relief is sought. The resolution of such lawsuits and claims is inherently unpredictable.  In accordance with GAAP, it is the Company’s policy to accrue for loss contingencies only when it is both probable that a loss has actually been incurred and an amount of such loss is reasonably estimable.  Except as described below, the lawsuits and claims involving the Company relate primarily to contractual disputes arising out of the ordinary course of the Company’s current and past business activities.  See also Note 11(g).

On September 17, 2007, a complaint was filed in the U.S. District Court for the Southern District of Florida by William Kornfeld against the Company, certain of the Company’s current and former officers and directors, Flagstone Securities, LLC and BB&T Capital Markets alleging various violations of the federal securities laws and seeking class action certification.  On October 9, 2007, a complaint was filed in the U.S. District Court for the Southern District of Florida by Richard and Linda Coy against the Company, certain of the Company’s current and former officers and directors, Flagstone Securities, LLC and BB&T Capital Markets alleging various violations of the federal securities laws and seeking class action certification.  On September 29, 2008, the Kornfeld and Coy cases were consolidated as In re Opteum Inc. Securities Litigation and the Court appointed a lead plaintiff and lead counsel.  On October 29, 2008, a consolidated amended complaint was filed in this action. The Company believes it has meritorious defenses in this action.

Guarantees>. Bimini Capital has guaranteed the performance of OITRS with respect to certain contractual obligations arising in connection with the sale of mortgage servicing rights by OITRS.  See also Note 11(g).

NOTE 9.  INCOME TAXES

REIT taxable income (loss), as generated by Bimini Capital’s qualifying REIT activities, is computed differently from Bimini Capital’s financial statement net income (loss) as computed in accordance with GAAP. Depending on the number and size of the various items or transactions being accounted for differently, the differences between Bimini Capital’s REIT taxable income (loss) and Bimini Capital’s financial statement net income (loss) can be substantial and each item can affect several years.

As of September 30, 2008, the REIT has approximately $68.7 million of tax capital loss carryforwards available to offset future tax capital gains. As of September 30, 2008 the REIT has a tax net operating loss carryforward of approximately $13.5 million that is immediately available to offset future REIT taxable income.

NOTE 10.   FAIR VALUE

In connection with the adoption of SFAS No. 159, Bimini Capital elected to transfer its available-for-sale portfolio of MBS to trading.  The securities transferred have similar characteristics to the Company’s existing trading portfolio, including issuer, credit quality, yield, duration and remaining term.

The securities transferred were previously considered to be other than temporarily impaired and carried at lower-of-cost-or-market.  As such, decreases in fair value were charged directly to earnings, while increases in fair value were not recorded.  As a result of electing to record these securities at fair value pursuant to the provisions of SFAS No. 159, the Company recorded the following to opening retained earnings:

(in thousands)

Balance at January 1, 2008 (after adoption)
  $ 296,118  
Balance at December 31, 2007 (prior to adoption)
    (294,404 )
Cumulative effect of adopting the fair value option
  $ 1,714  

 
The Company measures or monitors all of its MBS on a fair value basis. Fair value is the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for its mortgage-backed securities, the Company considers the principal or most advantageous market in which it would transact and considers assumptions that market participants would use when pricing the asset. When possible, the Company looks to active and observable markets to price identical assets.  When identical assets are not traded in active markets, the Company looks to market observable data for similar assets. Nevertheless, certain assets are not actively traded in observable markets and the Company must use alternative valuation techniques to derive a fair value measurement.
 
All of the fair value adjustments included in losses from continuing operations resulted from Level 2 fair value methodologies; that is, the Company is able to value the assets based on observable market data for similar instruments. The securities in the Company’s trading portfolio are priced via independent providers, whether those are pricing services or quotations from market-makers in the specific instruments. In obtaining such valuation information from third parties, the Company has evaluated the valuation methodologies used to develop the fair values in order to determine whether such valuations are representative of an exit price in the Company’s principal markets.
 
Fair value is used to measure the trading portfolio on a recurring basis.  The fair value as of September 30, 2008 is determined as follows:

(in thousands)

Fair Value Measurements as of September 30, 2008, Using
 
Quoted Prices in Active Markets for Identical Assets (Level 1)
  $ -  
Significant Other Observable Inputs (Level 2)
    226,568  
Significant Unobservable Inputs (Level 3)
    -  
Total Fair Value Measurements
  $ 226,568  



NOTE 11.   DISCONTINUED OPERATIONS

OITRS

The results of discontinued operations of OITRS included in the accompanying consolidated statements of operations for the nine and three months ended September 30, 2008 and 2007 were as follows:

(in thousands)

   
Nine Months Ended September 30,
   
Three Months Ended September 30,
 
   
2008
   
2007
   
2008
   
2007
 
Revenues
                       
Interest income
  $ 3     $ 22,543     $ -     $ 515  
Interest expense
    (20 )     (17,521 )     (5 )     (472 )
Net interest income (deficiency)
    (17 )     5,022       (5 )     43  
Loss on discontinued mortgage banking activities
                               
Fair value adjustment on retained interest, trading
    (43,085 )     (28,126 )     (8,255 )     (634 )
Other discontinued mortgage banking activities
    (126 )     (40,794 )     (79 )     (6,471 )
Other income and expenses, net of non-recurring items
    1,885       (15,412 )     47       4,364  
Net servicing loss
    (1,364 )     (13,868 )     (2,328 )     (1,241 )
Other interest income (expense) and loss reserves
    (2,001 )     (23,617 )     (759 )     1,077  
Deficiency of revenues
    (44,708 )     (116,795 )     (11,379 )     (2,862 )
Expenses
                               
General and administrative expenses
    (3,585 )     (30,833 )     (675 )     (2,918 )
Loss before provision for income taxes
    (48,293 )     (147,628 )     (12,054 )     (5,780 )
Provision for income taxes and valuation allowance
    -       (7,181 )     -       4,282  
Loss from discontinued operations, net of taxes
  $ (48,293 )   $ (154,809 )   $ (12,054 )   $ (1,498 )

During the nine months ended September 30, 2008, OITRS’s 51% membership interest in Interactive Mortgage Advisors, LLC, a Delaware limited liability company (“IMA”), was sold for $500,000 as evidenced by a promissory note.  The note, which is secured by the assets of IMA and guaranteed by certain affiliates of IMA, bears interest at a rate of 8% per annum and is payable in full on December 31, 2008.  The sale of OITRS’ membership interest resulted in a loss of approximately $285,000.  This loss is included in the table above under “Other income and expenses, net of non-recurring items.”

The assets and liabilities of OITRS included in the consolidated balance sheets as of September 30, 2008 and December 31, 2007 were as follows:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Assets
           
Cash and cash equivalents
  $ 73     $ 705  
Mortgage loans held for sale
    456       983  
Retained interests, trading
    14,384       69,301  
Securities held for sale
    15       173  
Originated mortgage servicing rights
    -       3,073  
Receivables
    23,923       17,868  
Property and equipment, net
    -       285  
Prepaids and other assets
    3,733       4,232  
Assets held for sale
  $ 42,584     $ 96,620  
Liabilities
               
Secured borrowings
  $ -     $ 18,000  
Accounts payable, accrued expenses and other
    14,353       9,842  
Liabilities related to assets held for sale
  $ 14,353     $ 27,842  

(a) - Mortgage Loans Held for Sale

Prior to ceasing operations, upon the closing of a residential mortgage loan or shortly thereafter, OITRS would sell or securitize the majority of its mortgage loan originations. OITRS also sold mortgage loans insured or guaranteed by various government-sponsored entities and private insurance agencies. The insurance or guaranty was provided primarily on a nonrecourse basis to OITRS, except where limited by the Federal Housing Administration and Veterans Administration and their respective loan programs.  Mortgage loans held for sale consist of the following as of September 30, 2008 and December 31, 2007:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Mortgage loans held for sale, and other, net
  $ 3,637     $ 4,780  
Valuation allowance
    (3,181 )     (3,797 )
Total
  $ 456     $ 983  

(b) – Retained interest, trading

      Retained interest, trading is the subordinated interests retained by OITRS resulting from securitizations and includes the over-collateralization and residual net interest spread remaining after payments to the Public Certificates and NIM Notes. Retained interest, trading represents the present value of estimated cash flows to be received from these subordinated interests in the future. The subordinated interests retained are classified as “trading securities” and are reported at fair value with unrealized gains or losses reported in earnings.

The total fair value of these retained interests was approximately $14.4 million as of September 30, 2008. Fluctuations in value of retained interests are primarily driven by projections of future interest rates (the forward LIBOR curve), the discount rate used to determine the present value of the residual cash flows and prepayment and loss estimates on the underlying mortgage loans. Due to higher loss severity assumptions and discount rates, the fair value of the retained interests decreased by $43.1 million and $8.3 million for the nine and three months ended September 30, 2008, respectively. Due to higher forward LIBOR rates and increased loss assumptions on the underlying mortgage loans, the fair value of the retained interests decreased by $28.1 million and $0.6 million for the nine and three months ended September 30, 2007.

All of OITRS’s securitizations were structured and are accounted for as sales in accordance with SFAS No. 140, Accounting for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities. Generally, to meet the sale treatment requirements of SFAS No. 140, the REMIC trust is structured as a “qualifying special purpose entity” or QSPE, which specifically limits the REMIC trust's activities, and OITRS surrenders control over the mortgage loans upon their transfer to the REMIC trust.

Valuation of Investments. >OITRS classifies its retained interests as trading securities and therefore records these securities at their estimated fair value. In order to value these unrated, unquoted securities, OITRS records these assets at their estimated fair value utilizing pricing information available directly from dealers, when available, and the present value calculated by projecting the future cash flows of a security on a publicly available analytical system. When a publicly available analytical system is utilized, OITRS will input the following variable factors which will have an impact on determining the fair value:

Interest Rate Forecast. LIBOR interest rate curve.

Discount Rate. The present value of all future cash flows utilizing a discount rate assumption established at the discretion of OITRS to represent market conditions and value of similar instruments with similar risks.  Discount rates used will vary over time.  Management observes discount rates used for assets with similar risk profiles.  In selecting which assets to monitor for variations in discount rates, management seeks to identify assets that share most, if not all of the risk attributes of the Company’s retained interests, trading.  Such assets are typically traded between market participants whereby the discount rate is the primary variable.

Prepayment Forecast. The prepayment forecast may be expressed by OITRS in accordance with one of the following standard market conventions: 1) Constant Prepayment Rate (CPR) or 2) Percentage of a Prepayment Vector (PPV). Prepayment forecasts may be changed as OITRS observes trends in the underlying collateral as delineated in the Statement to Certificate Holders generated by the REMIC trust’s Trustee for each underlying security.  Prepayment forecast will also vary over time as the level of interest rates change, the difference between rates available to borrowers on adjustable rate versus fixed rate mortgages change and non-interest rate related variables fluctuate such as home price appreciation, among others.

Credit Performance Forecast. A forecast of future credit performance of the underlying collateral pool will include an assumption of default frequency, loss severity, and a recovery lag. In general, OITRS will utilize the combination of default frequency and loss severity in conjunction with a collateral prepayment assumption to arrive at a target cumulative loss to the collateral pool over the life of the pool based on historical performance of similar collateral by the originator. The target cumulative loss forecast will be developed and noted at the pricing date of the individual security but may be updated by OITRS consistent with observations of the actual collateral pool performance.

Default Frequency may be expressed by OITRS in accordance with any of three standard market conventions: 1) Constant Default Rate (CDR) 2) Percentage of a Standard Default Assumption (SDA) curve, or 3) a vector or curve established to meet forecasted performance for specific collateral pools.

Loss Severity will be expressed by OITRS in accordance with historical performance of similar collateral and the standard market conventions of a percentage of the unpaid principal balance of the forecasted defaults lost during the foreclosure and liquidation process.

During the first year of a new issue OITRS may balance positive or adverse effects of the prepayment forecast and the credit performance forecast allowing for deviation between actual and forecasted performance of the collateral pool. After the first year, OITRS will generally adjust the Prepayment and Credit Performance Forecasts to replicate actual performance trends without balancing adverse and positive effects.

The following table summarizes OITRS’s residual interests in securitizations as of September 30, 2008 and December 31, 2007:

 (in thousands)

Series
Issue Date
 
September 30, 2008
   
December 31, 2007
 
HMAC 2004-1
March 4, 2004
  $ 1,744     $ 2,460  
HMAC 2004-2
May 10, 2004
    1,424       1,408  
HMAC 2004-3
June 30, 2004
    386       880  
HMAC 2004-4
August 16, 2004
    1,023       1,506  
HMAC 2004-5
September 28, 2004
    1,874       3,043  
HMAC 2004-6
November 17, 2004
    1,534       5,181  
OMAC 2005-1
January 31, 2005
    2,182       6,948  
OMAC 2005-2
April 5, 2005
    631       7,046  
OMAC 2005-3
June 17, 2005
    2,428       10,736  
OMAC 2005-4
August 25, 2005
    470       9,752  
OMAC 2005-5
November 23, 2005
    180       7,717  
OMAC 2006-1
March 23, 2006
    508       10,835  
OMAC 2006-2
June 26, 2006
    -       1,789  
              Total
    $ 14,384     $ 69,301  
 
As of September 30, 2008 and December 31, 2007, key economic assumptions and the sensitivity of the current fair value of residual cash flows to the immediate 10% and 20% adverse change in those assumptions are as follows:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Balance sheet carrying value of retained interests – fair value
  $ 14,384     $ 69,301  
Weighted average life (in years)
    3.99       4.09  
Prepayment assumption (annual rate)
    19.93 %     26.37 %
Impact on fair value of 10% adverse change
  $ (1,388 )   $ (6,908 )
Impact on fair value of 20% adverse change
  $ (2,042 )   $ (12,577 )
Expected credit losses (% of original unpaid principal balance)
    3.40 %     1.22 %
Impact on fair value of 10% adverse change
  $ (2,577 )   $ (6,409 )
Impact on fair value of 20% adverse change
  $ (4,200 )   $ (13,633 )
Residual cash-flow discount rate
    27.50 %     20.00 %
Impact on fair value of 10% adverse change
  $ (1,396 )   $ (4,138 )
Impact on fair value of 20% adverse change
  $ (2,600 )   $ (7,907 )
Interest rates on variable and adjustable loans and bonds
 
Forward LIBOR Yield Curve
   
Forward LIBOR Yield Curve
 
Impact on fair value of 10% adverse change
  $ (4,876 )   $ (14,906 )
Impact on fair value of 20% adverse change
  $ (7,294 )   $ (28,225 )

These sensitivities are hypothetical and should be used with caution. As the figures indicate, changes in fair value based upon a 10% variation in assumptions generally cannot be extrapolated because the relationship of the change in assumption to the change in fair value may not be linear. Also, in this table, the effect of the variation in a particular assumption on the fair value of the retained interest is calculated without changing any other assumption; in reality, changes in one factor may result in changes in another which may magnify or counteract the sensitivities. To estimate the impact of a 10% and 20% adverse change of the Forward LIBOR curve, a parallel shift in the Forward LIBOR curve was assumed based on the Forward LIBOR curve as of September 30, 2008 and December 31, 2007.

Credit loss percentages are calculated by using the original unpaid principal balance of each pool of assets as the denominator. The following credit loss percentages are calculated based upon all OITRS securitizations that have been completed to date:

(in thousands)

Series
Issue Date
 
Original Unpaid Principal Balance
   
Actual Losses Through September 30, 2008
   
Projected Future Credit Losses as of September 30, 2008
   
Projected Total Credit Losses as of September 30, 2008
 
HMAC 2004-1
March 4, 2004
  $ 309,710       0.57 %     0.36 %     0.93 %
HMAC 2004-2
May 10, 2004
    388,737       0.78 %     0.46 %     1.24 %
HMAC 2004-3
June 30, 2004
    417,055       0.59 %     0.66 %     1.25 %
HMAC 2004-4
August 16, 2004
    410,123       0.54 %     0.55 %     1.09 %
HMAC 2004-5
September 28, 2004
    413,875       0.67 %     0.80 %     1.47 %
HMAC 2004-6
November 17, 2004
    761,027       0.91 %     1.15 %     2.06 %
OMAC 2005-1
January 31, 2005
    802,625       0.84 %     1.44 %     2.28 %
OMAC 2005-2
April 5, 2005
    883,987       0.95 %     1.62 %     2.57 %
OMAC 2005-3
June 17, 2005
    937,117       0.78 %     1.88 %     2.66 %
OMAC 2005-4
August 25, 2005
    1,321,739       1.02 %     2.75 %     3.77 %
OMAC 2005-5
November 23, 2005
    986,277       1.11 %     3.87 %     4.98 %
OMAC 2006-1
March 23, 2006
    934,441       0.95 %     4.60 %     5.55 %
OMAC 2006-2
June 26, 2006
    491,572       1.81 %     8.69 %     10.50 %
Total
    $ 9,058,285       0.93 %     2.47 %     3.40 %
 
The table below summarizes certain cash flows received from and paid to securitization trusts:

(in thousands)

   
September 30, 2008
   
September 30, 2007
 
Servicing fees received
  $ 1,055     $ 11,375  
Servicing advances and repayments
    92       5,110  
Cash flows received on retained interests
    11,831       4,479  

The following information presents quantitative information about delinquencies and credit losses on securitized financial assets as of September 30, 2008 and December 31, 2007:

(in thousands)

As of Date
 
Total Principal Amount of Loans
   
Principal Amount of Loans 60 Days or more delinquent
   
Net Credit Losses
 
September 30, 2008
  $ 4,068,088     $ 701,639     $ 83,895  
December 31, 2007
    4,528,481       457,872       23,639  

 (c) – Mortgage Servicing Rights, Net

Owing to the excessive and increasing burden of the monthly advancing requirement on delinquent loans serviced by OITRS, coupled with the Company’s reduced liquidity, OITRS was unable to meet such servicing advance requirements in September of 2008 and as a result committed a servicer event of default under the various pooling and servicing agreements under which OITRS serviced loans.  Accordingly, such servicing was surrendered to the master servicer and the carrying value of the related servicing right was written off.  Such charge was approximately $2.0 million.  All advances made on such loans prior to the event of default, net of any costs incurred by the master servicer related to the servicing transfer, will be returned to the Company as the delinquent loans are liquidated over time.  The balance of the receivable at September 30, 2008 was $19.6 million.  Thr Company believes that the balance is fully collectible; therefore, no valuation allowance has been provided.

For the nine and three months ended September 30, 2008, OITRS had net servicing loss of $1.4 million and $2.3 million.  The results were driven primarily by the surrender of the MSRs owing to the event of default resulting from the inability of OITRS to continue to meet servicing advance requirements.

The table below provides the elements of the change in carrying value of the MSRs for the nine month periods ended September 30, 2008 and 2007.

(in thousands)

   
September 30, 2008
   
September 30, 2007
 
Balance at beginning of period
  $ 3,073     $ 98,859  
Additions
    -       7,727  
Sales, net of reserve for prepayment protection
    (1,344 )     (87,603 )
Changes in fair value:
               
     Due to changes in market conditions and run-off
    614       (13,785 )
     Due to change in valuation assumptions
    -       (2,558 )
Mortgage servicing rights surrendered
    (2,028 )     -  
Valuation Allowance
    (315 )     -  
Balance at end of period
  $ -     $ 2,640  
 
(d) – Receivables

A summary of receivables as of September 30, 2008 and December 31, 2007 is presented below:

(in thousands)

   
September 30, 2008
   
December 31, 2007
 
Servicing advances (principal and interest)
  $ 11,385     $ 5,636  
Servicing advances (taxes and insurance)
    8,185       7,495  
Servicing sale receivable
    3,899       4,681  
Other receivables
    454       56  
Totals
  $ 23,923     $ 17,868  

 
(e) – Secured Borrowings

Secured borrowings consisted of a line of credit for $80.0 million that was secured by the retained interests in securitizations. The line was paid in full on May 26, 2008.  The agreement provided for interest rate based on LIBOR plus 3.00%.
 
         (f)  - Income taxes
 
OITRS is a taxpaying entity for income tax purposes and is taxed separately from Bimini Capital.  Therefore, OITRS separately reports an income tax provision or benefit based on its own taxable activities.  As of September 30, 2008, all deferred tax assets, net of deferred tax liabilities, are offset in their entirety by a deferred tax asset valuation allowance.  Substantially all of the net deferred tax assets are a result of net tax losses incurred. The amount of the gross tax benefit generated by these losses are reduced by an offsetting valuation allowance of the same amount.

For the period ended September 30, 2007, OITRS has recorded a provision of $7.2 million for the nine months then ended, and a benefit of $4.3 million for the three months then ended. At December 31, 2006, OITRS had recorded net deferred tax assets of approximately $7.1 million. During the three month ended March 31, 2007, OITRS recorded a valuation allowance (among other items) resulting in OITRS recording an income tax provision of $11.5 million, which reduced the December 31, 2006 net deferred tax asset to a net deferred tax liability at March 31, 2007 of approximately $4.3 million. As part of the recording of this allowance at March 31, 2007, State tax NOLs were fully allowanced, as their availability to fully offset recorded deferred tax liabilities was not assured. The losses incurred by OITRS from March 31, 2007 through September 30, 2007 were sufficient to ensure that the State NOLs will be available to offset recorded deferred tax liabilities and realized gains on sales of OITRS assets; therefore the net deferred tax liability of $4.3 million was offset by the deferred tax assets related to the State NOLs expected to be realized as of September 30, 2007.  Consequently, the benefit for income taxes for the three months ended September 30, 2007 is $4.3 million, and the provision for income taxes for the nine months ended September 30, 2007 is $7.2 million. 

The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income within OITRS.  Management considers the scheduled reversal of deferred tax liabilities, projected future taxable income, and tax planning strategies in making this assessment.  At this time, management believes it is more likely than not that the Company will not realize the full benefits of all of the federal and state tax loss carryforwards, and that the Company will not realize any benefit of the other deferred tax assets.  Therefore, the Company has recorded a valuation allowance against all the net deferred tax assets of OITRS.  

(g) – Commitments and Contingencies

Loans Sold to Investors>. Generally, OITRS was not exposed to significant credit risk on the loans it sold to investors. In the normal course of business, OITRS provided certain representations and warranties during the sale of mortgage loans which obligated it to repurchase loans which were subsequently unable to be sold through the normal investor channels. The repurchased loans were secured by the related real estate properties, and could usually be sold directly to other permanent investors.

OITRS recognized a liability for the estimated fair value of this obligation at the inception of each mortgage loan sale based on the anticipated repurchase levels and historical experience. The liability was recorded as a reduction of the gain on sale of mortgage loans and included as part of liabilities related to assets held for sale in the accompanying financial statements.

Changes in this liability during the nine months ended September 30, 2008 and 2007 are as follows:

(in thousands)
 
   
For the Nine Months Ended
 
   
September 30, 2008
   
September 30, 2007
 
Balance—Beginning of period
  $ 5,260     $ 7,136  
Reclassification from other liabilities
    1,700       -  
Provision
    1,759       16,159  
Charge-Offs
    (1,416 )     (14,013 )
Balance—End of period
  $ 7,303     $ 9,282  
 
    Litigation Contingencies.> OITRS is involved in various lawsuits and claims, both actual and potential, including some that it has asserted against others, in which monetary damages and other relief is sought.  The resolution of such lawsuits and claims is inherently unpredictable.  In accordance with GAAP, it is the policy of OITRS to accrue for loss contingencies only when it is both probable that a loss has actually been incurred and an amount of such loss is reasonably estimable.  The lawsuits and claims involving OITRS, the most significant of which are described below, relate primarily to contractual disputes arising out of the ordinary course of OITRS's business as previously conducted. 

On June 14, 2007, a complaint was filed in the Circuit Court of the Twelfth Judicial District in and for Manatee County, Florida by Coast Bank of Florida against OITRS seeking monetary damages and specific performance and alleging breach of contract for allegedly failing to repurchase approximately fifty loans.  On September 5, 2007, OITRS filed a motion to dismiss Coast’s complaint.  On February 25, 2008, the Court denied OITRS’s motion to dismiss.  On March 14, 2008, the Court entered an order clarifying its order entered on February 25, 2008 and stating that it was unable to determine whether Coast’s claims are barred under Florida law without hearing additional facts.  As a result of the Court’s orders, discovery has now commenced.  OITRS believes it has meritorious defenses in this action.

On July 2, 2008, an amended complaint was filed in the Superior Court of the State of California for the County of Los Angeles, Central District by IndyMac Bank, F.S.B. against OITRS and others seeking monetary damages and specific performance and alleging, among other allegations, breach of contract for allegedly failing to repurchase thirty-six loans.  On August 11, 2008, OITRS filed a special demurrer to various causes of action set forth in the amended complaint.  On August 18, 2008, the Court entered an order substituting the Federal Deposit Insurance Corporation (the “FDIC”), as conservator for IndyMac Federal Bank, F.S.B., in the place of IndyMac Bank, F.S.B.  On September 29, 2008, the Court denied OITRS’s special demurrer.  OITRS believes it has meritorious defenses in this action.

(h) – Fair Value

OITRS measures or monitors many of its assets on a fair value basis. Fair value is used on a recurring basis for certain assets in which fair value is the primary basis of accounting. Examples of these include, loans held for sale, retained interests, trading, securities held for sale and mortgage servicing rights. Additionally, fair value is used on a non-recurring basis to evaluate assets for impairment.  Examples of these non-recurring uses of fair value include goodwill, and long-lived assets. Depending on the nature of the asset or liability, OITRS uses various valuation techniques and assumptions when estimating the instrument’s fair value. These valuation techniques and assumptions are in accordance with SFAS No. 157.

Fair value is the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants at the measurement date. When determining the fair value measurements for assets and liabilities required or permitted to be recorded at and/or marked to fair value, OITRS considers the principal or most advantageous market in which it would transact and considers assumptions that market participants would use when pricing the asset or liability. When possible, OITRS looks to active and observable markets to price identical assets or liabilities. When identical assets and liabilities are not traded in active markets, OITRS looks to market observable data for similar assets and liabilities. Nevertheless, certain assets and liabilities are not actively traded in observable markets and OITRS must use alternative valuation techniques to derive a fair value measurement.
 
The following table presents financial assets measured at fair value on a recurring basis:

(in thousands)

         
Fair Value Measurements at September 30, 2008, Using
 
   
Fair Value Measurements
September 30, 2008
   
Quoted Prices
in Active
Markets for
Identical
Assets
(Level 1)
   
Significant
Other
Observable
Inputs
(Level 2)
   
Significant
Unobservable
Inputs
(Level 3)
 
Mortgage loans held for sale
  $ 456     $ -     $ -     $ 456