Gym membership and debt collection

[W11LLF]

I joined Fit4Less gym in Jan 2012.

 

I signed up for the 'no contract' membership

- although this was intended to mean 'not a 12 month contract'.

 

They still wanted a contract signed

- I scanned through the contract to find it still included a 12 month minimum period

- perhaps they only have one form of contract.

 

I deleted this section (put a line through it) before signing.

 

The contract then, in effect, said I was able to give one month's notice at any time (once an initial 3 month period ended).

All fine so far - although somewhat sneaky not to have a different version of the contract for those taking a monthly deal...

 

In October I decided to move to a different club.

 

On my way out of the club at the beginning of the month I told the guy at reception I would be leaving and to take this as my 1 month notice.

He reminded me that it had to be in writing.

 

Somewhat irritated by the stupidity of this, I asked for his pen and scrap of paper and I wrote something to the effect of 'I am leaving the gym.

This is your 1 month written notice'. I also wrote my name.

This, i should think, still constitutes written notice. Again, so far so good, I thought.

 

In January I got a call from a woman at the club saying that I had cancelled my direct debit in October.

I confirmed that this is the case.

 

She explained that i couldn't just cancel because I had signed the contract.

I explained the story above.

She told me they had no record of notice.

I explained the story again.

 

She asked me who the person on reception was - quite honestly,

I didn't really notice and certainly don't remember -they have a number of different people who work reception.

 

She continued to say she doesn't have notice from me and I need to pay £120 or so - 3 months worth of gym fees.

I refused, explaining that i had adhered to the contract.

She told me she would be referring me to a debt collector.

 

A month later, ARC Europe debt collectors started calling.

I explained the story to them.

 

Initially they said I owed the money because I had a 12 month contract and I couldn't give notice.

I explained this is not the case and asked them to send me a copy of the contract.

 

Sure enough, when I received it it showed the section stating 12 month's notice with a line through it as described above.

I called them back to explain that he had just proved my point.

 

He told me he didn't have the contract and hadn't read it but assured me his client only do 12 month contracts.

I told him to either get the contract and read it or go back to his client.

He called me back a few days later and told me that after speaking to his client, they agreed I was on a monthly notice contract.

So now he explained that I hadn't given notice.

 

I explained the story about the guy on reception and the note.

He said his client doesn't have that notice so I have to pay. I refused.

 

I then asked him to explain, as a matter of interest, why the club were now claiming almost £150..

. he explained 3 months membership and £30 debt collection.

 

I asked him why he thought I owed 3 months

- even if they hadn't got a record of my notice

- surely the most they could ask for on a one month contract was one month.

 

He conceded that he didn't understand that - but would speak to his client again.

He told me again he hadn't actually read the contract.

 

Today, he called back - generally more of the same back and forward.

He explained I owed £150 because of the time between my last direct debit in October and the date when I went into the club on 2nd January.

 

I explained i hadn't been in the club since October

- and suggested that perhaps he meant 2nd January is when the club called me.

 

He assured me that his client had told him I'd visited the club.

 

I reconfirmed the whole story and reiterated my refusal to pay and he told me he would speak to Fit4Less again and come back to me...

 

My question is,

 

can anyone tell me what my rights are here?

 

I run a buy to let property business and really cannot afford, under any circumstances, to get a default marked on my credit score.

 

That said, I really do not want to succumb to what appears to me to be, effectively blackmail.

 

I've already spent a lot of time chatting on phones and writing this message

- and I'm going to cut and paste a few bad reviews about them

- but what can I actually do about this?

 

To be quite honest, I can afford the £150 and i'm tempted to pay to make it go away

- but on the otherhand, I feel this is entirely wrong and unfair and surely any form of blackmail in this country is illegal?

 

Isn't the burden of proof on the accuser?

 

How can I be expected to prove that I wrote two sentences on a piece of paper in October!?

[dx100uk]

Hi W1

 

i've moved you to the Gym forum

 

 

lots of this going on.

 

i'll let slick132 explain the finer points!

 

gut you owe nothing!!

 

as for the DCA [ARC europe]

 

they ARE NOT BAILIFFS

they have NO SUCH LEGAL POWERS

 

you really need to stay off the phone to them.

 

al they are intereted in is fleecing you.

 

they certainly have NO legal remit to add any fees , nor demand money from you.

 

dx

[BankFodder]

You did everything so right - and then you made your big mistake - not to take a copy of your cancellation or to make any note of the person you were dealing with.

You really should already have been on your guard against a company which apparently offers a no-contract membership and then tries to get you to sign a document which tries to commit you to a contract.

I hope that you and others who read this learn the lesson - which is never to trust anyone, always take copies, always take names, always record calls.

 

There is certainly a risk that the alleged debt might find its way to a CRA. It might have done already. You need to check - and keep checking.

You can either argue it with them - but they really won't give up or you can simply pay the money for an easy life.

Or you can take the battle to them by suing them for breach of contract on the basis that you had cancelled the contract and they are now in breach of the contract by chasing you for money.

 

You could do this by means of a small claim in the County Court and it would be easy and cheap.

The burden would be on you to show that you had indeed cancelled the contract. You would only have to show that what you were saying was probably true - meaning, more likely than not - meaning 51%.

Against you, you the problem that you didn't keep a copy of the cancellation - very silly - and that you don't know who you gave it to - also very silly.

 

For you, you have the evidence that they were trying to manipulate you into signing a 12 month contract which you noticed and dealt with. You also are able to say that while you have first hand knowledge that you did cancel, all they can say is that their system doesn't have any trace of the cancellation - therefore it is entirely reasonable to suppose that they - as any busy organisation - received it but lost it.

 

I would say that this gives you a better than 75% chance of success.

 

Additionally, you can also say that if there was no cancellation letter - as they claim, then there was at any rate a valid cancellation from the date of the failure of the first month's DD - and this would amount to sufficient notice of termination of the contract, in which case you are liable for the cost of one cancellation period.

 

Finally - and as part of the same claim, you should argue that in any event, if there was no cancellation, then you were in breach - in which case they are only entitled to recover admin losses caused by your breach.

I would claim a nominal amount - £20 for the loss/inconvenience and use that as a basis for the claim.

If you win your case, that will end any possibility of a CRA record.

 

So - up to you. You can pay them off or fight back.

 

Your choice.

[W11LLF]

Thanks for the reply so far...

Out of interest, for all of those unsuspecting gym goers who try to get pay for the 'no contract' monthly membership and don't notice the clause in the contract mentioning min 12 months - aren't Fit4less breaching the Trade Descriptions Act?

[BankFodder]

Certainly not that Act. Maybe other things - but not that.

 

But anyway, it will always be down to proof.

[slick132]

Hi W11 and welcome to CAG.

 

Further to the advice above, you should have kept a copy of the "cancellation notice" but it's too late to change that now.

 

If you look at the High Court case of The OFT v AMSL, you'll find that the judge confirmed that notice could be given by words (in person or phone), in writing (letter or email) or by action (cancelling the DD mandate). See here - http://www.consumeractiongroup.co.uk/forum/showthread.php?320766-Ashbourne-Management-Services-Ltd-Contracts-longer-than-12-months

 

You need to stop speaking to ARC from now on. If they call, tell them to put anything they want to say in writing, then hang up. We can help you write an appropriate response but you only need to do this when they write properly to you.

 

Gyms and their admin companies have a bad reputation for "losing" cancellation letters, whether it's a scrap of paper or a properly printed letter. That's why a copy with proof of delivery or receipt is important.

 

If you want to fight this, be prepared to get demands and/or phone calls for months. We'll help you in any way we can, as you'll see from the support that we give to others on their threads.

 

They have no right to demand any collection charges or penalty fees, nor can they make you pay for the extra months they want. It's clear they're prepared to use any trick in the book to get money from you - eg lying about when you visited the gym. I doubt they've been in touch with the gym about the lost cancellation notice or your last gym visit.

 

If, on the other hand, you can't be bothered with the hassle, pay them whatever they demand and learn a useful lesson from this.

 

Gym membership matters tend not to be reflected on credit files. Since the AMSL case, the CRA's shy away from carrying data about alleged gym debts.