      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206            2        In re ATD Corporation                       No. 02-3785
   ELECTRONIC CITATION: 2003 FED App. 0445P (6th Cir.)
               File Name: 03a0445p.06                        Before: GUY and GILMAN, Circuit Judges; REEVES,
                                                                              District Judge.*
UNITED STATES COURT OF APPEALS                                                _________________
             FOR THE SIXTH CIRCUIT                                                  COUNSEL
               _________________
                                                         ARGUED: Michael A. Gallo, NADLER, NALDER &
In re: ATD CORPORATION ,           X                     BURDMAN, Youngstown, Ohio, for Appellant. Peter A.
                                                         Jackson, CLARK HILL, Detroit, Michigan, for Appellees.
                       Debtor. -                         ON BRIEF: Michael A. Gallo, Timothy M. Reardon,
________________________ -                               NADLER, NALDER & BURDMAN, Youngstown, Ohio, for
                                    -  No. 02-3785
                                    -                    Appellant. Peter A. Jackson, James E. Brenner, CLARK
ATD CORPORATION ,                    >                   HILL, Detroit, Michigan, for Appellees.
                                    ,
                     Appellant, -
                                                                              _________________
                                    -
            v.                      -                                             OPINION
                                    -                                         _________________
ADVANTAGE PACKAGING ,               -
                                    -                      RALPH B. GUY, JR., Circuit Judge. ATD Corporation,
INC.; MOLDED MATERIALS,
                                    -                    the debtor in this Chapter 11 bankruptcy proceeding, appeals
INC.,                               -                    following the district court’s affirmance of the bankruptcy
                     Appellees. -                        court’s order allowing the claims of two creditors, Advantage
                                    -                    Packaging, Inc., and Molded Materials, Inc., despite their
                                    -                    having failed to physically file a proof of claim before the
                                  N                      “bar date.” Debtor argues that the bankruptcy court’s Bar
       Appeal from the United States District Court      Date Order required all creditors to file a proof of claim,
        for the Northern District of Ohio at Akron.      including those whose claims were “deemed filed” pursuant
   No. 02-00627—David D. Dowd, Jr., District Judge.      to 11 U.S.C. § 1111(a), in order to participate in the plan of
                                                         reorganization. After review of the record and the arguments
              Argued: December 2, 2003                   presented on appeal, we affirm.

       Decided and Filed: December 17, 2003



                                                              *
                                                              The Honorable Danny C. Reeves, United States District Judge for
                                                         the Eastern District of Kentucky, sitting by designation.

                           1
No. 02-3785                         In re ATD Corporation        3   4      In re ATD Corporation                       No. 02-3785

                               I.                                        the claims adjudication process and assist in the
                                                                         formulation and approval of a Plan and Disclosure
   ATD, a manufacturer and supplier of parts to the                      Statement.
automotive industry, filed a voluntary petition for relief under
Chapter 11 on January 30, 1998. As the debtor-in-possession,               IT IS THEREFORE ORDERED that creditors are
ATD filed bankruptcy schedules that listed obligations to its            provided a period of forty-five (45) days from the date of
unsecured creditors totaling $10,965,045.68. On those                    the mailing of this Notice within which to file a Proof of
schedules, Advantage Packaging and Molded Materials were                 Claim in the Form required by Rule 3001 of the Federal
listed as holders of undisputed, non-contingent, liquidated              Rules of Bankruptcy Procedure, and upon their failure to
claims in the amounts of $336,435.89 and $523,308.44,                    do so, such claimants shall be barred from participating
respectively. Debtor concedes that because these debts were              in Debtor’s Plan in any regard, including voting or
not scheduled as disputed, contingent or unliquidated,                   distribution purposes.
Advantage and Molded Materials were not required by either
11 U.S.C. § 1111(a) or Fed. Bankr. R. P. 3003 to execute and         The cover letter sent with the Bar Date Order advised
file a proof of claim. However, debtor contends that the             creditors:
bankruptcy court was authorized through the general equity
powers granted in 11 U.S.C. § 105(a), to order otherwise in a              PLEASE REVIEW THE ENCLOSED ORDER
given case.                                                                            CAREFULLY

   On October 26, 1999, the debtor moved ex parte for an              THE ORDER SETS DECEMBER 13, 1999 AS THE
order fixing the time period within which holders of claims or          DATE BY WHICH A PROOF OF CLAIM OR
interests must file claims. In support of the request, debtor         INTEREST IN THE FORM REQUIRED BY RULE
stated, without elaboration, that “the exact amount of the                3001 . . . MUST BE FILED WITH THE
liabilities set forth in Debtor’s Schedules are, in many                 BANKRUPTCY COURT IN ORDER FOR
instances, unable to be determined or are disputed by Debtor.”       CREDITORS TO PARTICIPATE IN THE PLAN OF
The order, submitted by debtor with the motion, was entered          REORGANIZATION FILED BY ROBERT H. CALE
the following day. That order provided in relevant part as
follows:                                                                  PLEASE TAKE NOTICE THAT FAILURE TO
                                                                          COMPLY WITH THE COURT’S ORDER MAY
     IT APPEARING TO THE COURT that pursuant to                            RESULT IN YOUR BEING BARRED FROM
  Rule 3003 of the Federal Rules of Bankruptcy Procedure,                    PARTICIPATING IN THE VOTING OR
  it would be in the best interest of these proceedings if all            DISTRIBUTION PROCESS RELATED TO THE
  creditors and equity interest holders were required to file                            PLAN
  Proofs of Claim or interest in the Form as required by
  Rule 3001 of the Federal Rules of Bankruptcy Procedure                  IF YOU HAVE ALREADY FILED A PROOF OF
  or be forever barred therefrom; and                                         CLAIM OR INTEREST, THERE IS NO
                                                                         REQUIREMENT THAT YOU DO SO AGAIN AS A
    IT FURTHER APPEARING TO THE COURT that                                     RESULT OF THE COURT’S ORDER
  the establishment of a bar date will significantly expedite
No. 02-3785                     In re ATD Corporation       5    6       In re ATD Corporation                                No. 02-3785

The bankruptcy court also sent notice of the Bar Date Order,     provisions relieving the creditor of having to physically file
which stated in part:       “IF ANY CREDITOR HAS                 a proof of claim. Id. at 761.1
PREVIOUSLY FILED A CLAIM IN THIS CASE, IT WILL
NOT BE NECESSARY TO FILE ANOTHER CLAIM.”                            The debtor appealed and the district court affirmed in an
There is no dispute that Advantage Packaging and Molded          opinion and order dated June 12, 2002, on the grounds that
Materials were served with the Bar Date Order, did not appeal    the authority granted by § 105(a) did not include the power to
from that order, and did not file a physical proof of claim      contravene the clear language of § 1111(a). In conclusion, the
before December 13, 1999.                                        district court observed that: “The plain fact is that the Debtor
                                                                 is seeking to enjoy a windfall by arguing for the disallowance
   On June 20, 2000, the bankruptcy court confirmed debtor’s     of the claims of Advantage and Molding Materials, claims
first amended plan of reorganization. In January 2001, debtor    which it listed in its own schedules as non-contingent,
began making distributions to unsecured creditors. When          undisputed and liquidated.” This appeal followed.
Advantage and Molded Materials did not receive any
distribution, each filed a motion in bankruptcy court for an                                          II.
order requiring payment of its claim, or, if necessary, relief
from the Bar Date Order. The debtor responded on July 2,            “When we review appeals from the decisions of a district
2001.                                                            court in a case originating in bankruptcy court, we directly
                                                                 review the decision of the bankruptcy court rather than the
  On March 1, 2002, the bankruptcy court granted the             district court’s review of the bankruptcy court’s decision.”
motions of Advantage and Molded Materials and allowed the        Stevenson v. J.C. Bradford & Co. (In re Cannon), 277 F.3d
claims because they were “deemed filed” pursuant to 11           838, 849 (6th Cir. 2002). The bankruptcy court’s decision is
U.S.C. § 1111(a). In re ATD Corp., 278 B.R. 758 (Bankr.          independently reviewed, applying the clearly erroneous
N.D. Ohio 2002). The bankruptcy court’s opinion opened           standard to the factual findings and a de novo review to the
with the statement that the debtor’s interpretation of the Bar   conclusions of law. Id.2
Date Order fails for three reasons: it allows the debtor to
ignore the mandatory requirements of § 1111(a); it allows the
debtor to ignore Fed. Bankr. R. P. 3003; and it permits debtor       1
                                                                       In a footnote, the bankruptcy court suggested that an order requiring
to avoid constitutionally required due process notice of         all creditors to physically file a proof of claim may be inconsistent with
objections to the scheduled claims. In analyzing the issues,     Bankrup tcy Co de. Id. at 758 n.3.
however, the bankruptcy court expressly declined to decide
                                                                     2
whether a bankruptcy court has the power to ignore the                  The debtor a rgues that the creditors’ motions should have been
directive of § 1111(a), and held that nothing in the Bar Date    denied because they failed to appeal from the Bar Date O rder within the
Order gave adequate notice that it was intended to override      10-day appeal pe riod. It was not the Bar Date Order that the creditors
                                                                 quarreled with, but the debtor’s interpretation of that Order as applying
                                                                 to the creditors’ claims despite their not having been required to file a
                                                                 proof of claim or interest under § 1111 (a) and Bankr. Rule 3003 . The
                                                                 creditors’ motions sought an order declaring that the Bar Date O rder did
                                                                 not affect their right to distribution under the plan, or, in the alternative,
                                                                 relief from the Bar Date O rder pursuant to Fed. R . Civ. P. 60(b )(4). W e
                                                                 are satisfied that the failure to appeal from the Bar Date O rder itself did
                                                                 not preclude the creditors from moving for either allowance of their
No. 02-3785                          In re ATD Corporation        7   8      In re ATD Corporation                       No. 02-3785

   Creditors whose claims are scheduled, but are not                      determination necessary or appropriate to enforce or
scheduled as disputed, contingent or unliquidated, are deemed             implement court orders or rules, or to prevent an abuse of
to have filed a proof of claim or interest. Section 1111(a)               process.
states: “A proof of claim or interest is deemed filed under
section 501 of this title for any claim or interest that appears      The bankruptcy court’s broad equitable powers are
in the schedules filed under section 521(1) or 1106(a)(2) of          nonetheless constrained to actions or determinations that are
this title, except a claim or interest that is scheduled as           “not inconsistent” with the Bankruptcy Code. See, United
disputed, contingent, or unliquidated.” Consistent with               States v. Energy Res. Co., 495 U.S. 545, 549-50 (1990); In re
§ 1111(a), Bankr. Rule 3003 provides both that the schedule           Dow Corning, 280 F.3d 648, 658 (6th Cir. 2002); In re
of liabilities is “prima facie evidence of the validity and           Foremost Mfg. Co., 137 F.3d 919, 924 (6th Cir. 1998).
amount of the claims of creditors, unless they are scheduled
as disputed, contingent, or unliquidated”; and that while any            While one bankruptcy court has found it had authority
creditor may file a proof of claim within the time set by the         under § 105(a) to order that proof of claims must be filed by
court, only a “creditor or equity security holder whose claim         all creditors notwithstanding § 1111(a), In re McLean Enters,
or interest is not scheduled or scheduled as disputed,                Inc., 98 B.R. 485 (Bankr. W.D. Mo. 1989), that court relied
contingent, or unliquidated” must file a proof of claim within        on pre-code authority and did not attempt to determine
the time set by the court. Bankr. Rule 3003(b)(1), (c)(1), and        whether such an order would be inconsistent with § 1111(a).
(c)(2). In fact, subsection (b)(1) of Rule 3003 concludes by          Like the bankruptcy court, we find it is unnecessary to decide
stating that: “It shall not be necessary for a creditor or equity     whether a bankruptcy court can ever order proof of claims to
security holder to file a proof of claim or interest except as        be filed by creditors whose claims would be deemed filed
provided in subdivision (c)(2) of this rule.”                         under § 1111(a). Instead, we conclude that whether or not the
                                                                      bankruptcy court has the power to do so, the Bar Date Order
  Debtor acknowledges that Advantage and Molded                       entered in this case did not adequately notify creditors that
Materials were not required by either the Bankruptcy Code or          they could not rely on § 1111(a) and Bankr. Rule 3003.
the Bankruptcy Rules to physically file a proof of claim, but         Accord In re Johnson, 238 B.R. 462, 467 (Bankr. W.D. Mo.
vehemently argues that the directive in the Bar Date Order            1999) (“Nothing in the Order Setting Bar Date or the Order of
that “all creditors” file a proof of claim by the bar date            Confirmation stated that either Order was intended to override
applied to these creditors notwithstanding § 1111(a) and              the provisions of the Code and Rules upon which [the
Bankr. Rule 3003. For support, debtor relies on the grant of          creditor] was justified in relying.”)
power in 11 U.S.C. § 105(a) authorizing bankruptcy courts to
                                                                        Despite the fact that the Bar Date Order directed all
  issue any order, process, or judgment that is necessary or          creditors to file a proof of claim or interest by the bar date,
  appropriate to carry out the provisions of this title. No           there was no indication in either the Order or the notices
  provision of this title providing for the raising of an issue       pertaining to the Order that would advise creditors such as
  by a party in interest shall be construed to preclude the           Advantage and Molded Materials that it applied to them
  court from, sua sponte, taking any action or making any             notwithstanding § 1111(a) and Bankr. Rule 3003. Rather,
                                                                      such an implication was contradicted by the Order’s statement
                                                                      that the bar date was being set pursuant to Bankr. Rule 3003.
                                                                      Nor was the intention that it apply to all creditors clarified by
claims or relief from the Bar Date Order.
No. 02-3785                      In re ATD Corporation        9

the statement in the notices indicating that if a claim had
already been filed it would not be necessary to file another
claim. We find no error in the bankruptcy court’s
determination that to construe the Bar Date Order as debtor
urges would “run afoul” of the due process rights of these
creditors to receive adequate and meaningful notice that they
were required to physically file a proof of claim before the bar
date. In re ATD, 278 B.R. at 763. See also New York v. New
York, New Haven & Hartford R.R. Co., 344 U.S. 293, 297
(1953) (“But even creditors who have knowledge of a
reorganization have a right to assume that the statutory
‘reasonable notice’ will be given them before their claims are
forever barred.”); In re Herd, 840 F.2d 757, 759 (10th Cir.
1988) (notice containing obviously invalid bar date was not
sufficient to reasonably convey the required information).
  AFFIRMED.
