In The Matter Of Whitcomb & Keller Mortgage Co., Inc.

715 F.2d 375 (1983)


D, a mortgage banker, executed an executory contract with P, whereby P was to provide computer services to update and maintain D's customer accounts. Upon termination of the contract, P would return all master files and other occupational data relating to D upon payment in full of any outstanding balance. When D filed its bankruptcy petition, it owed P $12,954.63 for computer services previously rendered, which was listed in the bankruptcy schedule as a general unsecured claim. P continued providing computer services, and D paid for all services provided during the administration of the estate. D determined that it should sell its mortgage servicing contract assets. The court found the bids of Milliken Mortgage Company and Unity Savings Association to be the best for the sale of the assets. P discontinued computer services to D, paralyzing it, and precipitated the filing of an application for a temporary restraining order and preliminary injunction. The bankruptcy court enjoined P from terminating the computer services, and the services were resumed. P filed to declare that D, by its application requesting the court to enforce the executory contract and by its continued receipt of the benefits of the executory contract, had assumed the executory contract, or (2) to require D to decide whether to assume or reject the executory contract within a specified period of time before the confirmation of the plan. The court eventually found that D had not assumed the executory contract. The court denied P's request to require D to assume or reject the executory contract prior to the confirmation of the plan. D rejected the plan. The district court affirmed, and P appealed.