Helio Fitness - ***WON*** Bank refund £160 under DD Guarantee Scheme***

[twentydollarjim]

Hi guys,

 

My partner has just been direct debited £160 for a second year of membership at Helio Fitness - http://www.heliofitness.co.uk

 

Initially she only signed up for 12 months. However, because the direct debit was in place, they're refusing to reimburse her claiming that she 'should have cancelled the direct debit'.

 

In the terms, we can't find anything relating to annual charges not being refunded. Can anybody help?

 

Terms and conditions from Helio Fitness' website -

 

> PRINCIPLE TERMS

> 1. This agreement commences either: If you are on the club’s premises, once you have indicated your acceptance in the Declaration section of this web sign up process.

> OR

> If you are not on the club’s premises, once you have indicated your acceptance in the Declaration section of this web sign up process and then either entered the clubs premises or after a period of 7 days has elapsed, whichever is earlier.

> 2. Your membership starts immediately.

> 3. You will be entitled to all the rights and privileges exercisable for the Type of Membership chosen.

> 4. You cannot transfer this agreement to anyone else.

>

> FEES AND CHARGES

> 5. The Total first payment amount is due from you to us, is due immediately and is payable on the 1st Direct Debit Payment Date. This amount is not refundable in any circumstances.

> 6. The Direct Debit Payment Amount is due from you to us. You are obligated to make the Minimum Number of Direct Debit Payments stated with the first one being paid on the 1st Direct Debit Payment Date, the second on the Second DD payment date and then every month thereafter. For the avoidance of doubt, you are obligated to make every Direct Debit Payment regardless of non attendance, whatever the reason for non attendance may be.

> 7. If you fail to pay any monies due under this agreement or if any Direct Debit is returned unpaid or any cheque is returned unpaid or if any other form of payment is not honoured for whatever reason, you shall pay us on demand an administration fee of £25.

> 8. You agree to advise us immediately of any change to the Members Details provided.

> 9. If you fail to pay any amount due under this agreement for a period of more than thirty days, then we may pass the debt to a third party company for collection. The reasonable costs incurred in employing the third party company will be borne by you including costs in tracing you should you have changed your address without telling us.

>

> RENEWAL

> 10. In order to extend your membership after completing the minimum number of Direct Debit payments, we will automatically continue collecting the Direct Debit Payment Amount every month. Your membership will be cancelled immediately you cancel your Direct Debit. Each payment made is not refundable under any circumstances. This Renewal Direct Debit Payment Amount may only be amended if we advise you in writing giving 30 days notice. Please note – If your membership included the benefit of a Free Period then we will stop making collections during that Free Period and recommence making collections when this free period has finished.

> 11. During this Renewal Period the only way to cancel your membership is by cancelling your Direct Debit Mandate directly with your Bank.

>

> GENERAL TERMS

> 12. You agree to comply with the Rules of Membership which are displayed prominently in the Club and relate to opening hours, use of facilities and your conduct. We may make reasonable changes to these Rules at any time provided we give you advance notice of the change.

> 13. If we take no action or let you off any breach of this agreement or give you extra time to pay or comply, it will not stop us enforcing the terms of this agreement strictly at a future date.

> 14. We may assign the benefit of this agreement and our rights thereunder to a third party on notice to you. Your rights under this agreement will not be prejudiced.

> 15. This agreement is governed by English Law.

> 16. We may terminate this agreement with immediate effect on notice to you if you are in breach of the Clubs Rules. In this event you will not be liable to pay any further Direct Debit Payments, provided such breach is not deemed by us to have occurred primarily in order to qualify you for a refund.

>

> Yours sincerely

> Harlands

 

Many thanks for your help,

Jim

[slick132]

Hi TDJim,

 

The T&C's above refer only to monthly DD payments.

 

Re the £160 they have taken by DD recently, is this for a full year's m/ship for one person.

 

How did YP pay for the m/ship last year, monthly or in one payment.

 

Edited October 14, 2012 by slick132
typo

[twentydollarjim]

Hi there, thanks for the response.

 

Yes, it's for 1 person for 12 months.

 

Last year it was paid in one payment. A monthly direct debit wasn't in place.

 

Thanks again,

Jim

[slick132]

Hi TDJ,

 

Did you sign a DD mandate enabling them to take a year's fee in one go last year.

 

Or is there a Continuous Payment Authority (unlikely).

 

Certainly, the T&C's refer to monthly DD's and I can't see where they mention annual DD payments. This should be useful to your case.

 

[slick132]

The gym is right in saying that YP should have cancelled her m/ship if she wanted to terminate after the initial 12 month minimum m/ship period.

 

However, the T&C's make no mention at all of taking a year's fee :-

 

RENEWAL

> 10. In order to extend your membership after completing the minimum number of Direct Debit payments, we will automatically continue collecting the Direct Debit Payment Amount every month.

 

I think this makes it very clear that the gym taking a year's fee is NOT in their T&C's.

 

Accordingly, you should write to the gym saying :-

 

1. You had no right to take the £160 in one go, and that I require you to refund the full amount within 7 days.

 

2. If you fail to do this, I will take court action to recover the money.

 

If YP has continued to use the gym, you can negotiate on what she should pay for her continued use of the facility. Does YP want to continue her m/ship ? If not, then she should cancel the DD immediately and inform the gym that she's cancelling because they've acted contrary to the terms of your agreement.

 

Also, you should write to the bank saying the gym has taken money for a years fees contrary to the m/ship T&C's. Accordingly, you require that the bank makes a refund to you of the full amount under the Direct Debit Guarantee Scheme.

 

If the gym fails to refund and the bank doesn't reverse the transaction, we can help you seek a refund using the court system.

 

[twentydollarjim]

Thanks for the advice Slick. The company stated that the original terms and conditions were sent to my partner in an email last year which was never received. They have now forwarded a copy of the email they supposedly sent and there is no indication on it that it was actually sent to my partner's email address. I've attached a copy of the email to this message. We fully intend to write to them again as there is no proof that it was sent to my partner's email address.

 

What is your opinion? Thanks again.

 

http://www.mediafire.com/?8owy2mloo8gr7lt

 

http://www.mediafire.com/?mw5ir6jbf42s21w

Edited August 14, 2012 by twentydollarjim

[slick132]

Hi TDJ,

 

You didn't answer saying whether YP wants to continue m/ship at the gym or not.

 

Did you write to them as suggested in post #5 above making the points 1 and 2 as I suggested.

 

And are the attachments above their response to you.

 

Have you tried to secure a refund of the DD amount using the DD Guarantee Scheme through the bank. If not, do so now.

 

Reply to Harlands saying :-

 

The copy emails you have sent prove nothing and change nothing.

 

The membership agreement referred to monthly payments being taken if the m/ship was not cancelled.

 

You have taken a year's fees in one go and this is contrary to item #10 of the Terms and Conditions of the membership agreement.

 

You must refund the £160 immediately or I will take whatever action is necessary to secure a refund using the DD Guarantee Scheme or the Small Claims Court.

 

If you fail to refund in full as required within 14 days, I will take further action without notice.

 

See how they respond.

 

[twentydollarjim]

Thanks for the information again Slick.

 

My partner does not want to continue the membership.

 

Yes, she did write the letter explaining points 1 and 2 and their response along with the attachments was 'Further to your recent letter regarding the continuing membership period on your member, please find enclosed the original e-mail we sent to you on the 19th June 2011 which explains your payment schedule.'

 

The person she spoke to on the phone said the terms and conditions they sent her originally (copied at the start of this thread) were invalid as they did not correlate with her original membership. However they have failed to send her the original terms and conditions.

 

Thanks for the advice, my partner will try to contact the bank and follow your steps when writing to harlands.

 

My partner has not tried to contact the bank and she has only received the letter yesterday. It turns out they sent it to the wrong address

 

Thanks again

[slick132]

Noted.

 

Contact Harlands as per my latest suggestion and contact the bank regarding the DD Guarantee Scheme.

 

Keep us updated please.

 

[twentydollarjim]

Hi Slick,(this is twentydollarjim's partner writing)

 

Thank you for all your suggestions. You have been extremely helpful.

 

Here's what happened since we last posted on here:

 

Harlands sent me a response to my initial query which was to see the original e-mail which stated about the DD and the copy of my terms and conditions. When I eventually received the letter (they sent the first letter to the wrong address) it was an e-mail explaining all about the direct debits but in the To section it was an e-mail that I didn't recognise - it looked like it was an e-mail address which was internal to the company. They thought that justified as evidence even though I had never seen the e-mail! They failed to send me the terms and conditions I requested.

 

In response to that, I took your advice and I wrote to my bank requesting a refund through the Direct Debit Guarantee scheme and sent them al the correspondence from Harlands. I also cc'd the letter to Harlands as well as a response to their letter.

 

A couple of days ago I received a text from my bank stating that my case was closed. I checked my bank and the £160 was refunded back into my account.

 

As I found out, the case was passed from my local bank to their management and then to Head Office, which I was told was not unusual but more often than not management could deal with most issues relating to DD guarantees. As I understand, the law is now starting to crack down on gym memberships and I can completely understand why.

 

I wouldn't have known to contact the bank regarding this type of query so I really do appreciate your help and support throughout this case.

 

Many thanks again!

[slick132]

Hi TDJ's Partner and thanks for the update.

 

Great to hear this has been resolved through the bank's DD Guarantee Scheme. Getting your money back, one way or another, is what you wanted.

 

Thread title amended to reflect your **WIN**

 

Any site donation you can manage helps us be here to help the next "Gym Victim" !

 

[debrob555]

Hi Slick,

 

I am TDJ's partner but writing on my account. I have donated some money as you have been extremely helpful.

 

However, I have received a letter today from Harlands. I didn't expect it as I assumed I had won the case - the bank refunded me the money.

 

Harlands have written:

 

'We have received an Indemnity Claim from your bank to refund your annual instalment collected in July 2012, total £160.00. Consequently, we write to clarify the situation.

 

As you are aware upon joining you agreed to the membership Terms and Conditions, that included the renewal of your membership. The instalment collected was valid and correctly collected under the terms and conditions of your membership. At no time did we receive advice from your bank that the Direct Debit had been cancelled therefore the payment is not refundable. Due to the indemnity claim your bank has sent us, this instalment must be repaid to your bank, unless the claim is withdrawn. We therefore ask that you request your bank to withdraw its indemnity claim immediately.

 

Should you not withdraw the claim and rectify the breach of your membership by 6th October 2012 you will incur a £20.00 administration charge and the matter will be referred to a debt recovery company to pursue for a full refund of £160.00 and all costs incurred.

 

We trust this letter receives your urgent attention.'

 

I didn't realise that a company can override a bank's decision and try to get me to undo the indemnity claim but then again I don't really know how they work. Do you have any advice for this?

 

Also, they have once again failed to supply me with my terms and conditions and an answer to my question relating to whom they sent the information (e-mail) to regarding my personal direct debit with dates etc.

 

I'm going to see the bank tomorrow to see if they have any information regarding this issue.

 

Thanks in advance,

 

Debrob555

[slick132]

Hi Debrob and thanks for the Site Donation.

 

Harlands cannot " ........ override a bank's decision ........" which is why they are ASKING you to withdraw the DD reclaim. They really have no discretion in the matter at all.

 

There's no need to seek clarification from your bank as the refund has been made and the matter concluded. As long as you've cancelled the DD, you need do nothing more with your bank.

 

However, I see that you didn't give them notice to cancel and this may slightly weaken your stance. I've addressed this with the offer to pay a month's fee as you'll see below.

 

I suggest you reply to Harlands as follows :-

 

Dear sir or madam,

 

Regarding your letter of xxdate, I refer you once more to my email of xxdate [the one in post #7 above], to which there is little I need add.

 

You were clearly not minded to refund the £160 annual fee so I chose to request the refund through the DD Guarantee Scheme, as was my prerogative.

 

I have already received the refund and I will not withdraw my request.

 

You can add whatever admin charges you wish - they are unlawful penalty charges which are unenforceable at law.

 

I wish to be reasonable in the matter and realise I did not give notice to cancel. I am therefore willing to offer, without prejudice, to pay the equivalent of one month's fee as compensation for the cancellation. If you confirm, in writing within 14 days, that you will accept £13.33 as a cancellation fee in full and final settlement of all monies owed in respect of my membership, I will pay this by return to end the matter.

 

If you do not accept my offer within 14 days, I will withdraw it and exercise my right to ignore further communications or demands from you.

 

If you pass the alleged debt to a collection company, I will bring the matter to the attention of the OFT without further notice.

 

I trust I have made my position clear.

 

Yours faithfully,

 

The debt collection company will be CRS, who operate from the next desk in the same office !! They can be usually be ignored as responding to them just fuels their lust for your money. It may also come to a point where you simply ignore Harlands too. They would have a job getting their m/ship agreement enforced in any court, despite all that they'll threaten.

 

Let us know when they respond.

 

[debrob555]

Hi Slick,

 

A site donation is the least I can do to support you and your site.

 

Thank you for your advice and the reply. I have written the letter and it will be sent tomorrow. I will let you know their response.

[slick132]

Hi Debrob,

 

Just so you see the sort of exchanges that can occur with Harlands and CRS, read through this thread which is similar to your own - http://www.consumeractiongroup.co.uk/forum/showthread.php?353762-Credit-Resolution-Services.&p=3867796&viewfull=1#post3867796

 

Read the letters from Harlands and/or CRS which are linked as PDF's. You'll see Ms Thyer has various hats including Collections Dep't and Legal Officer.

 

[debrob555]

Hi Slick,

 

Just a quick update. I haven't had a response from Harlands yet but I will respond when I do!

 

Thanks

[slick132]

Thanks and let us know in due course.

 

[debrob555]

I have had a letter today- but not from Harlands.

 

It is from Credit Resolution Services (so no response letter from Harlands!) as you predicted.

 

It reads:

 

"IMPORTANT: PLEASE READ VERY CAREFULLY

 

An amount of £160 with Harlands has now been passed to us for collection.

 

In accordance with the terms and conditions of your contract with Harlands you have now also become responsible for our fees in recovering this amount. Our standard charge of £66.50 has therefore been applied bringing the full account balance to £226.50.

 

You can now only speak to us about this balance. Harlands will simply refer you back to us if you contact them.

 

- please call us on 01444 449 165 to arrange payment of your balance over the telephone.

 

- Of you are unable to settle the balance straight away, please still call us as we will help you resolve any problems you have in paying.

 

- A Collector will be used to recover your balance if you do not call us by 18th October 2012, which may lead to you being taken to court.

 

We want to help you clear this balance but failure to address the matter may result in further fees being applied, so please call today.

 

Yours sincerely,

For Credit Resolution Services

 

Charlie Amos

Collections Department"

 

They reside on 1st Floor, 41-43 Perrymount Road, Haywards Heath, West Sussex, RH16 3BN.

 

Do you think that they know that my bank, Santander, is actually chasing them for the money or are they doing all this as a scare tactic. What legal rights do they actually have against me seeing as I have not received a copy of any terms and conditions, did not receive a copy of any direct debit information and have not attempted to answer any of my questions?

 

What should I expect now in terms of letters and dare I say court?! I have taken on board what you said about ignoring them in an earlier thread. However can they actually and realistically take me to court? Would it be worth them doing that? Also, can any of this go on my credit history?

 

Many thanks in advance

[locutus]

.....The debt collection company will be CRS, who operate from the next desk in the same office !! They can be usually be ignored as responding to them just fuels their lust for your money. It may also come to a point where you simply ignore Harlands too. They would have a job getting their m/ship agreement enforced in any court, despite all that they'll threaten.

 

Let us know when they respond.

 

Slicks crystal ball bang on as usual

[slick132]

Hi Debrob,

 

Do you think that they know that my bank, Santander, is actually chasing them for the money

 

As far as I'm aware, your bank would only refund the £160 to you once they'd collected it back through the DD Guarantee scheme. So it's already been taken back from Harlands and given to you. That's why Harlands are still chasing it, this time using their alter-ego, CRS.

 

As regards your other questions, they are likely to continue to make demands for payment, in which case, I can put you in touch with the right person at the OFT. Although they won't involve themselves with your individual case, they are looking at the activities of gyms and their admin companies to see that consumers are treated fairly.

 

It is most unlikely that they will take court action but, if they do, we'll assist with defending as far as possible. They have poor grounds for making a court claim.

 

As regards your CRA files, you should check over the next few months to ensure they have not posted any adverse markers about all this.

 

Letter to CRS :-

 

Dear sir or madam,

 

In response to your letter of xxdate, I have nothing to add beyond what I said in my letter to Harlands of xxdate.

 

Harlands ignored my offer to pay one month's notice of £13.33 and my offer to pay expired 14 days after I made it.

 

Consequently, I will pay you nothing more in respect of membership fees allegedly due or unlawful penalty charges which you have added.

 

I will exercise my right to ignore further communications and/or demands from Harlands or CRS.

 

If you make any further demands for payment, I will make a formal complaint to the OFT sending copies of all correspondence without further warning.

 

Yours faithfully,

 

Send this by Rec'd Del'y and let us know how they respond.

 

[debrob555]

Yep Locutus, he is bob on again!

 

Thanks for the info and letter guide Slick. I will send it Rec'd deliver,y as you advised, and see what happens.

 

If this goes to court, I should have enough evidence to prove that they didn't give me any information regarding my membership or direct debit info. Therefore they didn't keep their side of the bargain at all. Thank you for the offer of support if this does go to court. If they do want to take me to court, what is the usual process? Would they send me a formal letter telling me to go to court? Obviously, I've never been in this position before so any information would be helpful!

 

By checking the CRA files, does that mean looking on Experian or similar to check my credit report?

 

Many thanks

Debrob

[locutus]

Yeah. Noddle is free https://www.noddle.co.uk/

[debrob555]

Excellent, thanks locutus!

[slick132]

Hi Debrob,

 

Re CRA files, yes - check on one or more just to ensure they haven't slipped a nasty under the radar.

 

If they do want to take me to court, what is the usual process?

 

LoL !! There isn't one as it simply doesn't happen enough for there to be any USUAL process. In fact, I can recall only two cases in the last 4 years. One where the DCA slipped a CCJ through using an old address. And one other that is ongoing but this is NOT one of the normal gyms or gym admin companies.

 

In your case, the T&C's say nothing about taking a year's fee in one go, so they really have nothing on which to base a court claim.

 

If they took it to court, you should :-

 

Get a Letter Before Action (although they send these all the time and don't follow through).

Receive a copy of the claim from the court .

Acknowledge the claim and notify your intent to defend in full.

Submit your defence.

 

After that, if they decide to pursue the claim, you'd be notified of what to do by the court and you'd need to prepare and submit evidence to back up your contentions.

 

We'd help you through the process including putting evidence together.

 

But, like I've said already, this is so unlikely, particularly in your case because their own T&C's give them no basis to take a year's fee.

 

[debrob555]

Thanks for the reassurance Slick, and for answering my questions.

 

The T&C's posted on here at the beginning of the thread are thire current T&C's rather than ones that apply to me and they don't seem to want to give me my original T&C's! They are not forthcoming and I wouldn't have thought that would go in their favour at all!

 

I would like to tell OFT about this issue once it is all over so they can look into specific examples of Harlands and CRS.

 

Thanks,

Debrob