by ComFed since August 3, 1988 in the amount of $ 49,709.99. According to testimony by Mr. David Gutin, attorney for ComFed, the modified judgment included $ 2,000 attributable to advertising expenses. The total judgment was therefore increased to the amount of $ 1,643,134.76.
16. The interest rate in effect on federal judgments on August 4, 1988 was 7.95 percent.
17. The interest rate in effect on federal judgments on January 11, 1989 was 9.20 percent.
18. ComFed rescheduled the marshal's sale of the Property for February 22, 1989 at 1:00 p.m. by notices dated January 18, 1989. The expenses incurred by the sheriff in connection with advertising and serving notice for the planned February 22, 1989 sale equalled $ 852.12.
19. By letter dated February 16, 1989, Miles H. Shore, Esq., attorney for Albert Bader, an alleged second mortgagee of the property, challenged the Notice of Sale and advertising used by ComFed with respect to the planned February 22, 1989 sale. After consultation with its attorney, ComFed decided to postpone the sale planned for February 22, 1989. Although ComFed and its attorney believed that the notice and advertising were appropriate, they believed that it would be prudent to provide the notice requested by Mr. Shore so as to ensure that the foreclosure sale would be free from legal attack. They also believed that litigating the issue of notice would generate costs in excess of the cost of additional notice and delay.
20. ComFed rescheduled the sale of the Property for March 29, 1989. The sheriff's expenses for advertising and notice in connection with the sale planned for March 29, 1989 were equal to $ 1,669.35.
21. The sale was rescheduled for a final time to April 5, 1989 due to the failure of the sheriff to serve one of the general partners personally thirty days prior to the date of the planned March 29, 1989 sale. No additional advertising costs were incurred as a result of the postponement to April 5, 1989.
22. The Property was sold on April 5, 1989 by the marshal to John Baylis for $ 1,751,000. Mr. Baylis closed with the marshal on April 17, 1989. The U.S. Marshal is holding the entire proceeds of the sale in escrow in an interest-bearing account.
23. By letter dated April 6, 1989, ComFed's attorney submitted a Schedule of Proposed Distribution of the proceeds, requesting that the entire proceeds of the sale, after deducting the Marshal's commission, be paid to ComFed.
24. On April 13, 1989, Miles Shore, on behalf of Albert Bader, filed exceptions to the Schedule of Proposed Distribution and requested the appointment of an auditor.
25. On April 14, 1989, Douglas Zeiders, Esq., on behalf of the Associates, filed exceptions to the Schedule of Proposed Distribution.
26. On April 25, 1989, the Honorable Marvin Katz appointed Michael H. Schill, Assistant Professor of Law, University of Pennsylvania Law School, as the Auditor for purposes of determining the exceptions to the proposed schedule of distribution of the proceeds of the sale of the Property.
27. A meeting with the attorneys involved in the matter was held at the University of Pennsylvania Law School on May 10, 1989. Notice of the meeting was sent to all attorneys listed on the district court clerk's docket. Arsen Kashkashian, Jr., Esq. was sent notice of the meeting, which notice was returned to the sender due to an inaccurate address. Upon being notified of the meeting by telephone, Mr. Kashkashian referred all matters concerning the Exceptions to the Proposed Schedule of Distribution to Mr. Zeiders.
28. At the May 10, 1989 meeting it was decided that the matter should be bifurcated. The first segment of the proceeding would require the Auditor to determine the amount of the fund held by the Marshal to which ComFed was entitled. In the event that the fund was not exhausted by ComFed's award and other expenses, a second proceeding would take place to determine whether the Associates or Mr. Bader was entitled to the surplus.
29. An evidentiary hearing was held on July 7, and July 10, 1989 at which the Auditor heard evidence from several witnesses. All attorneys of record were given notice of the proceeding.
B. Management of the Property
30. Pursuant to a Conditional Assignment of Rents and Leases between James A. Fister, the general partner of Newtown Commons Plaza Associates, and ComFed dated October 2, 1986 (hereinafter referred to as the "Assignment"), Newtown Commons Plaza Associates granted to ComFed an assignment of the rents and leases from the Property as security for the indebtedness of Albert W. Bader.
31. Paragraph 9 of the Assignment provides as follows:
That if any event of default occurs at any time under the Note, Mortgage or any other instrument constituting additional security for the Note, and Assignor fails to cure same within any applicable grace period therein set forth, Assignee may (at its option after service of a Notice) receive and collect when due all such rents, income and profits from the Premises and under any and all Leases of all or any part of the Premises. . . .
32. Paragraph 10 of the Assignment provides as follows:
That Assignor hereby irrevocably appoints Assignee its true and lawful attorney-in-fact, with full power of substitution and with full power for Assignee in its own name and capacity or in the name and capacity of Assignor (from and after the service of a Notice) to demand, collect, receive and give complete acquittances for any and all rents, income and profits accruing from the Premises, and at Assignee's discretion to file any claim or take any other action or proceeding and make any settlement of any claims, in its own name or in the name of Assignor or otherwise, which Assignee may deem necessary or desirable in order to collect and enforce the payment of the rents, income and profits. . . .