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Blimey - I see a lot of this going on here. Can I set out my particular case here as I'd like some opinions

.

I called a soon to be opening Gym in my locality. I was told I could take the introductory offer or £12.99 per month so I took this up for me and my wife. I believe this was mis-sold because what they are saying now equates to a yearly membership fee of £142.98 payable in monthly instalments. This was all done on the phone and I was never told they required us to keep this up for 12 months. No communication was ever received from the Gym and when my wife called in after it opened to ask for membership cards she was told "we don't do that kind of thing". She also perceived this to be a younger persons gym and not for us so she said I will cancel our membership.

 

We cancelled our direct debit. For a number of months I continued to get text messages with special offers but then I got a text saying they required 12 months payments or they would start action. I tried to call the gym but within 2 days whilst trying to me contact I got a letter from a solicitor demanding money. I said I had no intention of paying and I'd see them in court.

 

They have since sent me some stuff. 3 letters from an agent marked "file copy" saying our standing order had to be re-instated. We never received these letters - if we had I would have responded. I believe they are bogus copies. They bear the same address as the solicitor. Also attached was a "membership agreement" which is nothing more than a computer print out of our details on the Gyms computer. I've pointed out that the solicitor has furnished me with nothing that constitutes an agreement or a contract and certainly nothing signed by me.

 

I've said I would argue these details in court. Before I send this letter I'm just wondering if there are any othger arguments I should make. Are there any precedents. Have they really got a leg to stand on without my signature.

Edited by Steve_T
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Hi Steve,

 

Can you please confirm what gym is involved and what admin company, collection company and solicitor are involved.

 

If you "joined" by phone, you are offered protection by the Consumer Protection (Distance Selling) Regulations 2000.

 

See Sections 7 to 12 here - http://www.legislation.gov.uk/uksi/2000/2334/regulation/7/made

 

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The Gym is called Xercise 4 Less http://www.xercise4less.co.uk/

 

The Collection company is called Credit Resolution Services of Haywards Heath.

 

CRS have provided 6 "file copy" letters from "Harlands" of exactly the same address as CRS. These letters which we never received purport to be demanding we re-instate our direct debit and charge £25 on each occasion totalling £100. They insist on writing to my wife and I separately. When I called to take out membership I spoke on behalf of us both on what I took to be a joint membership.

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Hi Steve,

 

So is it your position that :-

 

1. You wanted to join and use the gym but you were not aware of, and would not have agreed to, a minimum 12 month m/ship contract.

 

2. You didn't get anything in the post confirming the m/ship contract or it's Terms and Conditions.

 

You say you had a letter from a solicitor. Which one please.

 

We are very well acquainted with Harlands and CRS, who appear to work from two desks in the one office !!

 

They will send you very big letters explaining how their admin fees are correct and proper. But we maintain that they are unenforceable penalties.

 

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yes my position is as your points one and two

 

the letters from solicitor I refer to are those From CRS

 

I pretty much assumed that CRS and Harlands were one and the same but for now I will allow them the fiction theyseek to create and I'll send CRS copies of my letter to Harlands. I intend to accuse Harlands of fraudulently manufacturing those "file copy" letters. There is no way they sent us a total of 6 letters, none of which were received. The also insist on writing to my wife and I separately thus generating two sets of charges

 

One potential fly in the ointment is that when I look more closely at an email that came out at the time mentions 12 months. I did not read it at the time. If I had I would have cancelled immediately. My contention will be that I received noting in the post and did not sign anything. If they refer to the email I will say that my email is so spam ridden that it is not a suitable medium to relay contractual terms. I certainly did not reply to it accepting these terms

Edited by Steve_T
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ALSO

 

Another point I have made to them is that I was quoted £12.99 per month for me and my wife each. What they should have said was £142 per year payable monthly. At no time did the guy say I was agreeing to a minimum of 12 months. Furthermore they are sending separate letters (and charges) to my wife who took no part in this transaction. She has never signed nor agreed to anything.

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Hi Steve,

 

An email that mentioned 12 months is not a gym contract, which is what they should have sent you to confirm the details of the contract between you. They should also have sent you a set of the T&C's applicable to the m/ship.

 

It really doesn't matter if they sent you 6 or 60 letters. The charges they are trying to levy are quite simply non-enforceable penalties.

 

Also, you don't need to argue you toss with them about the wording of their offer and whether they should have said £142 per year payable monthly, or not. This will just encourage them to continue writing to you until they wear you down.

 

Stick to the basics and you'll win the battle. Tell them they failed to provide you with proper documentation relating to the gym contract, as required by the CP(DSR) Reg'ns 2000 that I referred to above. Accordingly, the contract they claim to be in force has never been concluded.

 

Just in case they try to be funny about there being one joint, or two separate, contracts make sure you tell them you write on behalf of yourself and YW. Get YW to countersign the letter.

 

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Ok thanks. I sent them a rather more long winded answer than that but I was trying to stick to the basics. I'll draft a letter as you describe and leave it with my wife to respond as I will be a away a few weeks now. I'm not signing my letters to them - simply typing s thompson - they have never seen my signature and I don't intend to let them see it. What I'll do is draft two letters one from each of us and meet like for like.

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Hi Steve,

 

Her's one I made earlier !! http://www.consumeractiongroup.co.uk/forum/showthread.php?344562-Destinylondon-and-Harlands-problems&p=3780156&viewfull=1#post3780156

 

Keep your letter(s) brief and to-the-point and keep us posted.

 

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This is the letter I have prepared to respond to whatever their next missive is

 

Dear Sir,

 

REF 8114364.

 

Having sought legal advice on this:

 

1. Xercise 4 Less (The gym) failed to comply with the requirements of the Consumer Protection (Distance Selling) Regulations 2000. A copy of my membership contract should have been sent to me when I joined. It was not sent at the time, not has it been supplied since.

 

2. Accordingly, there's no contract in place and your demands are made without basis.

 

3. The Harlands “charges” you refer to are unenforceable penalties.

 

4. You must cease all collection activity whilst this matter remains in dispute or I will report you to the OFT. This applies both to Harlands and to CRS (who are also Harlands).

 

I'll send two letters one under my wifes ref and one mine

 

I'm tempted to alter 4 to read

 

4. This matter is concluded and you must cease all communication with me or I will report you to the OFT. This applies both to Harlands and to CRS (who are also Harlands).

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Hi Steve,

 

I would start off saying, "I have taken advice in this matter", without saying it is legal advice.

 

Use your version of item 4. by all means - it looks fine to me.

 

My guess is that'll write back with a BIG letter taking your arguments apart and, in particular, saying their penalty charges have "been approved" by their Legal Advisors, the OFT, Trading Standards, a group of Buddhist Monks from Tibet and a wise old Owl that lives in Winnie the Pooh's Hundred Acre Wood. :lol:

 

Let us know how they respond.

 

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My wife has received a letter (I am away at present) NO letter for me as yet. She has responded with the simple 4 point letter I posted above as was suggested by slick123

 

The letter from CRS states that as we have signed a contract (we haven't) then a court would find in their favour. Actions they suggest they may take include

 

  • visit by a collection agent
  • attachment of our earnings
  • charges to our bank account
  • sale of our goods

etc etc - this is not 100% accurate as I'm recalling what my wife just read out over the phone.

 

Since there is no contract in force these threats constitute harassment or at least intimidation do they not?

Edited by Steve_T
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Hi Steve,

 

Since there is no contract in force these threats constitute harassment or at least intimidation do they not?

 

Yes and, as such, you can report this to the OFT. They will not assist in your case personally but the complaint will add weight to the information which the OFT may use to better regulate the gyms and their admin companies.

 

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  • 2 weeks later...

There have been a couple of developments. I have been away a couple of weeks and my wife got a demand stating legal action would commence etc. She sent the simply stated reply referred to earlier. I got no such letter and now on my return intend to write to them saying as they have not responded to me have the accepted my position that I owe them nothing.

 

Meanwhile just this morning we both have individual letters which state:

 

TERMS AND CONDITIONS ATTACHED - surely it's no good sending these now at this time?

They Say The Harlands charges were admin charges - they refer to the terms and conditions (again irrelevant as we never received them)

They say previous Harlands letters are not a fabrication (whatever, we still never received them)

 

They says this " You entered into the Membership Agreement Online at the Gym, so distance selling does not apply as was entered into on the trade premises". This is not so - the transaction was carried out via telephone. I made no express agreement.

 

I attach their terms and conditions as received just now. They refer to sign up online etc which we did not do - it was a telephone transaction and we did not receive the terms and conditions

 

As a goodwill gesture they offer to knock £50 off.

 

I still think they're talking out their backsides but would like some advice on how best to respond before I do so.

tandc.pdf

Edited by Steve_T
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Hi Steve,

 

You could each write back saying something like:-

 

Dear sir or madam,

 

I refer to your letter of xxdate.

 

As you have decided to continue to make threats of legal action and demand payment when the matter is in dispute, I will now lodge a formal complaint about Harland's behaviour with the OFT.

 

You are wrong in much of what you say and I choose not to waste more of my time replying to every point at this stage. However, I will say the following :-

 

1. Why have you sent me Terms and Conditions now - these should have been supplied back when I wanted to join the gym.

 

2. Admin Charges - these are unenforceable penalties with no basis in law, regardless of whether they were mentioned in T&C's.

 

3. Membership was discussed by telephone and not on-line.

 

Before you make any further demands, I suggest you avail yourself of the facts regarding my personal case. You should perhaps also research the Consumer Protection (Distance Selling) Regulations 2000 with regard to telephone transactions.

 

I may choose to ignore further demands from you but these will be forwarded to the OFT to back up my complaint about Harlands and CRS.

 

If you are certain you have a valid claim against me, feel free to take court action It will be defended vigorously.

 

Yours faithfully,

 

Make a complaint to the FOS and keep us informed.

 

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Here is what I will send to teh OFT> Should I include copies of the CRS letters ?

 

 

23/04/2012

 

 

Dear Sir,

 

I wish to lodge a complaint against Credit Resolution Services (CRS) of 1st Floor, 41-43 Perrymount Rd, Haywards Heath, West Sussex, RH16 3BN and Harlands who operate from the same address and are likely to be the same company.

 

CRS are harassing me for money I do not owe and making threats of action despite my pointing out that there is no legal or contractual basis for their claim and that some “charges” applied by Harlands are illegal penalties. I have asked them to desist since I dispute their claim and have suggested that if they believe they have a valid claim against me, they are free to take court action. They continue to harass and threaten me by letter in what I believe is an effort to wear me down. These letters are sent to both my wife and I individually.

 

The issue surrounds a firm called Xcercise 4 Less, New Street, Mandale Triangle,Thornaby,, Stockton-on-Tees, TS17 6BU.

 

I contacted Xcercise 4 Less by telephone towards the end of last year before they opened and decided to try a special offer membership. The entire transaction was conducted over the telephone and I paid the initial fee with my debit card.

 

When the Gym opened my wife called to ask about membership cards etc as we had received nothing. She was told that Xcercise 4 Less did not do that kind of thing. She asked if she could take a look around the gym and she was told that Xcercise 4 Less did not do that kind of thing. For this reason and for the reason that she perceived it to be a younger persons Gym and not somewhere she wished to attend she informed the staff member that she was cancelling our membership. The member of staff made no response to this.

 

She then cancelled the direct debit that I had set up over the telephone.

 

• We have never visited the Gym ever.

• We have never received any communications from the gym apart from text messages advertising special offers which I was unable to stop due to it being impossible to send a return text.

• We have not signed any contract with this gym.

• We did not receive any terms and conditions from the gym.

• The gym has never contacted us since the cancellation of the direct debit several months ago.

• The gym have never contacted us regarding their perceived default by us save for a text message that I received on 13th March claiming we were in default and that legal action would be taken.

• I could not respond to that text and tried to contact the gym by telephone

 

 

Following all this my wife and I each received a letter from CRS demanding £142.89 (11 gym installments) + £50 (2X Harlandsadmin” charges) and their own charge of £69.44 making a total of £262.33 to each of us – a full total of £524.66.

 

I responded to CRS with much of what I have written above and also pointed out:

 

1. Xercise 4 Less (The gym) failed to comply with the requirements of the Consumer Protection (Distance Selling) Regulations 2000. A copy of my membership contract should have been sent to me when I joined. It was not sent at the time, nor has it been supplied since.

2. No terms and conditions of membership were referred to nor received by us

 

3. Accordingly, there's no contract in place and their demands are made without basis.

 

4. The Harlands “charges” referred to are unenforceable penalties.

 

5. I asked them to cease all communication with me or I would report them to the OFT.

 

CRS then sent a total of 6 “file copy” letters they purport to be letters sent to us from Harlands about the cancelation of the direct debit. We never received a single one of these letters and it is inconceivable that a total of six letters could be lost in the post.

 

Now, in spite of my request they continue to make threats of legal action and in 19th April have sent us both a copy of terms and conditions. We have never before seen these terms and conditions and they are written in such a confrontational tone I would never have agreed to them in the first place had I seen them.

 

I believe the Gym in question is trading unethically and CRS are harassing us with demands and threats that have no genuine basis but that they are trying to build a case out of nothing and wear us down in the process.

 

 

 

Yours sincerely

 

Steve T

Edited by slick132
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Para 2 - ......by Harlands are unlawful penalties.

 

Bearing in mind that the OFT will not involve themselves in individual cases (this is not their remit), the letter includes a bit too much detail.

 

However, it tells the FOS the important part which are :-

 

Harlands/CRS are trying to bully you into paying for a contract which never existed.

 

They refuse to stop demanding payment when the matter is clearly in dispute.

 

They are trying to top up their admin fee charges by saying so many letters have been sent to you when clearly they haven't.

 

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Probably a good idea.

 

They just need to know that Harlands/CRS are trying to bully you into paying with no regard for the CP (Distance Selling) Regs, no regard for the actual circumstances of your case and no regard for the matter being disputed.

 

They will not involve themselves in whether the admin fees are lawful or not.

 

They won't be all that interested in the precise figures either. They'll be more interested in the companies' behavious in handling the debt and the dispute.

 

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simpler version

 

 

Dear Sir,

 

I wish to lodge a complaint against Credit Resolution Services (CRS) of 1st Floor, 41-43 Perrymount Rd, Haywards Heath, West Sussex, RH16 3BN and Harlands who operate from the same address and are likely to be the same company.

 

CRS are harassing me for money I do not owe and making threats of action despite my pointing out that there is no legal or contractual basis for their claim and that some “charges” applied by Harlands are unlawful penalties. I have asked them to desist since I dispute their claim and have suggested that if they believe they have a valid claim against me, they are free to take court action. They continue to harass and threaten me by letter in what I believe is an effort to wear me down. These letters are sent to both my wife and I individually.

 

The issue surrounds a firm called Xcercise 4 Less, New Street, Mandale Triangle,Thornaby,, Stockton-on-Tees, TS17 6BU.

 

I contacted Xcercise 4 Less by telephone towards the end of last year before they opened and decided to try a special offer membership. The entire transaction was conducted over the telephone and I paid the initial fee with my debit card.

 

When the Gym opened my wife called to ask about membership cards etc as we had received nothing. She was told that Xcercise 4 Less did not do that kind of thing. She asked if she could take a look around the gym and she was told that Xcercise 4 Less did not do that kind of thing. She informed the staff member that she was cancelling our membership. The member of staff made no response to this.

 

Following all this my wife and I each received a letter from CRS demanding a total of £262.33 to each of us – a full total of £524.66.

 

I responded to CRS with much of what I have written above and also pointed out:

 

1. Xercise 4 Less (The gym) failed to comply with the requirements of the Consumer Protection (Distance Selling) Regulations 2000. A copy of my membership contract should have been sent to me when I joined. It was not sent at the time, nor has it been supplied since.

2. No terms and conditions of membership were referred to nor received by us

 

3. Accordingly, there's no contract in place and their demands are made without basis.

 

4. The Harlands “charges” referred to are unenforceable penalties.

 

5. I asked them to cease all communication with me or I would report them to the OFT.

 

CRS then sent a total of 6 “file copy” letters they purport to be letters sent to us from Harlands about the cancelation of the direct debit. We never received a single one of these letters and it is inconceivable that a total of six letters could be lost in the post.

 

Now, in spite of my request they continue to make threats of legal action and in 19th April have sent us both a copy of terms and conditions. We have never before seen these terms and conditions and they are written in such a confrontational tone I would never have agreed to them in the first place had I seen them.

 

I believe the Gym in question is trading unethically and CRS are harassing us with demands and threats that have no genuine basis but that they are trying to build a case out of nothing and wear us down in the process.

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Yup, I like that better Steve.

 

:-D

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Enquiries and Reporting Centre

Office of Fair Trading

Fleetbank House

2-6 Salisbury Square

London

EC4Y 8JX

 

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