Mis Sold LA Fitness Contract **RESOLVED SUCCESSFULLY**

[regynald]

To whom it may concern

 

I was wondering if you could help?

 

My partner, Nasim an Iranian National, visited West India Quay LA Fitness gym on 31/01/2013 with the intention of using the gym one time only, to see if she wanted to join. With respect to Nasim, her English is bad, she is naive when it comes to procedures in the UK, and she is not IT literate. When asked to use the gym as a trial, she was told of an offer which was about to expire where she could use the gym for 1 week or 10 days for the small fee of £1, which she duly paid. The representative went on to inform her she needed to give her card and other details as a simple procedural step to get the offer. The representative asked for her card, and filled out the entirety of the form which she was not shown. The representative asked Nasim to electronically sign, and I am certain Nasim is completely unaware of the implication.

 

Recently I requested a printed bank statement to support Nasim’s next Visa application. Upon receiving the statement we noticed LA Fitness are withdrawing funds by DD from her account. Nasim does not use online banking as I only helped her set this up in the last few weeks and she has been unaware until now payments have been taken each month. She is distressed given she was unaware she had signed up to anything, or that she needed to cancel any contract which until today, she did not know existed. She repeatedly told the representative she wanted to simply try the gym for one week which she was offered for £1, and after that if she liked it she stated she would join. Nasim used the gym on a single occasion, decided it was too expensive given she is not an affluent student with great means and she never returned.

 

All of this suggests to me the LA Fitness representative has funnelled Nasim towards something she did not want... to make commissions. It’s a classic miss sell, at best unethical, given we have a duty of care to foreign people who do not have enough comprehension of the language and procedures in the UK, therefore we must make sure they fully understand what they are doing. They do not use electronic signatory in Iran, and knowing Nasim she would have no idea what she was doing by scribbling on a piece of plastic. I know Nasim very well and she is a wonderful person and based on what she has told me I can see exactly what has gone on.

 

In short, Nasim has walked into a gym to simply give it a try, and walked out with an expensive contract for a low income student which she is not aware she agreed to. When I hear of commission based staff adopting these techniques, it makes me very determined to put such wrongs right and I was wondering if you could help. I believe Slick offers very good advice.

 

Kind regards

 

Chris.

Edited September 7, 2013 by regynald
Removal of personal details from thread.

[fkofilee]

Alarm!!! I think you need to remove all personal details from this

[regynald]

Sorry, thanks... I have removed all personal details!

[honeybee13]

Hello and welcome to CAG.

 

I'll move this thread to the gyms and health clubs forum, where the guys should be able to help. I'll leave a short term redirect from this forum for you to follow to the new one.

 

My best, HB

[regynald]

Thanks HB

[slick132]

Hi Regynald,

 

Your partner (YP) appears to have been taken advantage of, as you rightly say, to boost staff performance figures and/or commission.

 

YP should write to her bank saying :-

 

Dear sir or madam,

 

Direct Debit Guarantee Scheme - Request for immediate refund

 

Direct Debits taken by the LA Fitness gym have been taken from my bank account without my knowledge or consent.

 

I hereby cancel any DD mandate in favour of LA Fitness with immediate effect.

 

I had no idea they used my details to set up a Direct Debit and I understood they needed my details purely as a formality. I agreed to a limited offer of a week's access to the gym for a nominal agreed sum which I paid at that time.

 

I did not want to become a full member and did not use their facility beyond the agreed week. I consider this DD mandate to have been set up improperly.

 

The payments in question are for £xx.xx taken on :-

 

[date]

[date]

[date], etc

 

Accordingly I request that you make a full and immediate refund of the amounts taken from my bank as listed above, totalling £xxx.xx.

 

Please confirm in writing that the refund has been made and the DD mandate has been cancelled.

 

Yours faithfully,

 

Then a letter to FF's Head Office to be sent by RM Signed For delivery :-

 

Dear sir or madam,

 

Direct Debit for West India Quay LA Fitness gym

 

I visited the above gym at the end of January 2013 taking advantage of the offer of a week's use for a nominal amount. I wanted to try the gym out but decided not to become a member.

 

I was asked for bank account details which I gave. My understanding was that this was just a formality, in case I wanted to become a full member after the trial period. I must add that I am Iranian and my understanding of English is not very good.

 

I was shocked to recently discover that the staff member at the gym had used my bank details to set up a membership and that Direct Debit payments have been taken each month from my bank account. I never agreed to any full membership and, if this was set up, it was done without my knowledge or consent.

 

I have written to my bank demanding a full refund of all sums taken by you, using the Direct Debit Guarantee Scheme. If my bank does not refund the money immediately, I shall seek a refund from you and, if you fail to refund in full, I shall take court action to recover my money.

 

You should ensure that my membership is cancelled with immediate effect and that you destroy my personal banking data.

 

If I receive any demands from you, or any agent instructed by you, for payment, the matter will be reported to The OFT without further notice.

 

Please confirm in writing within 7 days that you have taken the necessary action to remedy this matter.

 

Yours faithfully,

 

Let us know what response you get to each letter.

 

[regynald]

Slick thank you very much. You articulated that perfectly and I cannot thank you enough. This gym upon reading is ruthless but luckily I am versed in county court procedures and I would be willing to go to that length should it be required... principal is enough . Ill report back to you when I have a response from both parties and thanks again. It's a great service being provided.

[slick132]

Hi Regynald and thanks for your kind words.

 

Experience suggests the bank will refund quickly so it's unlikely that court action would be required. If it WAS necessary, it would be a relatively straightforward claim.

 

It is likely that the gym will write complaining that YP is signed up for a year and they require payments to be made for the months that the bank refunds, and for the remaining months of the 12 month "agreement". They may even set ARC (their pet DCA) on you to chase for payment. They are most unlikely to take any court action or make any adverse reports on YP's CRA files.

 

If the gym or ARC won't play nicely and clear off, we'll suggest how best to deal with them.

 

[slick132]

Not necessarily relevant to your case but still interesting - http://www.consumeractiongroup.co.uk/forum/showthread.php?402937-LA-Fitness-Harlands-Dave-Whelan-Sports-(DWS)-Agree-to-easier-cancellation-rights-with-The-OFT(1-Viewing)-nbsp

 

Please keep us posted.

 

[regynald]

Hi Slick,

 

If you were in London I would be taking you out for a few drinks, but I will of course make another small donation to your site as it really is good to know the consumer has clever people to rely on. HSBC to their credit have immediately refunded all sums to my partners account today on her birthday. It is Fantastic news and a great birthday present for her as she is a struggling student and it is half a months work for her in her part time role to fund her studies. So a fantastic result, lets see what those fiends over at LA Fitness say about now trying to enforce the contract by other means. The first battle is won, but the war is not over.

 

Kind regards

 

Regynald. :smile::smile::smile:

[regynald]

Hi Slick

 

Scripted response it seems received back from LA Fitness - simply changing the fields to suit my partners name.

 

"Thank you for contacting LA fitness Member Support, I write in reference to your

recent letter dated 8th September 2013 regarding your cancellation request.

 

I am sorry to hear you are unhappy with the service you have received from LA

Fitness, I can assure you we do endeavour to provide the best possible service at all

times and therefore apologise if you feel this has not been achieved.

 

Having located a copy of your contractual agreement I can see your membership was administered via the kiosk.

 

Having located a copy of your contractual agreement I can see you have signed and

agreed to a 12 month contract paying £49.50 per month. As your agreement was

processed via the Kiosk, the process is made up of a six steps which enable you to

complete the joining process. The second step of the joining process is choosing the

package that best suits you; it is on this page that you choose the price you want to

pay per month. The next step is to then to provide your details and agree to the

membership.

 

Before you complete the joining process you are sent a pre-contract agreement to

the email address you have provided in the previous page. Once you reach the last

step, the step which requires your signature, you will see a breakdown of your{

agreement containing your monthly price, contract length and payment details. It is

on this page that you are required to sign your contractual agreement confirming

you are happy to proceed with the membership as shown.

 

Once you have signed and agreed to the contract an automated email is sent to the

email address provided at the point of sale containing a copy of your contract and

the Terms and conditions applicable. As with all LA Fitness contracts you were

entitled to a 10 day cooling off period to allow for any disputes or issues to be

resolved whilst you still had the ability to cancel. I note that at no point after

receiving a copy of your contract have you contacted us within this cooling off period

to dispute the above matter nor have you changed the email address provide since

joining .

 

By signing the contract you have confirmed to LA Fitness that you have fully read,

understood and agree to the Terms & Conditions of the membership.

The Terms and Conditions do not state that you cancel before the end of your initial term.

 

Due to the above no cancellation will be placed on your membership at this time.

I am sorry that this was not the outcome you were hoping for.

 

If we can be of any further help, please do not hesitate to contact us.

 

Member Support"

 

How should I respond to that?

Your help is greatly appreciated.

 

Chris.

[slick132]

Hi Regynald,

 

Drinkies in London would have been lovely but the CAG Donation will suffice, and will be much appreciated.

 

If you think the details are correct, send this letter:-

 

Dear sir or madam,

 

I refer to your response of xxdate and would remind you that I am Iranian. My English is not very good so this letter is written with assistance.

 

Your staff representative informed me that I needed to give my card and other details as a simple procedural step to get the offer, this being a week's use of the gym for £1. The representative asked for my card, and filled out the entirety of the form which I was not shown. The representative asked me to electronically sign and I was completely unaware of any 12 month membership agreement being set up.

 

I told your representative I wanted the trial membership and took their advice in good faith. Instead of providing what I was offered, my personal card details were improperly used to set up a membership that I neither wanted nor agreed to.

 

If your representative set up the 12 month agreement, it was done without my knowledge, understanding or consent. The only consent I gave was for the week's trial.

 

Rather than pursuing me for fees for a membership that I never wanted or agreed to, I respectfully suggest you :-

 

1. Retrain your staff to ensure they do not coerce people into signing agreements they they do not want.

 

2. Stop paying financial incentives to staff that encourage them to get an agreement signed, regardless of what the customer says or wants.

 

My bank has now refunded to me the DD payments that were taken without my consent.

 

If you make any demands for the alleged 12 month agreement, I will make a formal complaint to The OFT without further warning.

 

Yours faithfully,

 

[regynald]

Hi Slick

 

I have a response from these guys in 2 letters...

 

Dated 20th September

 

It has come to our attention that your membership with us is

currently in arrears due to an indemnity claim we have received

from your bank.

 

We are certain that this must be an oversight and would appreciate

if you could contact us within the next 7(seven) days on the number

above in order to rectify t his matter'. We currently have an

outstanding amount of £346.50 on you account.

 

Thank you for attention with regard to this matter.

 

Dated 24th September

 

Thank you for contacting LA Fitness Member Support, I write in response

to your letter dated 18th September regarding the cancellation of your

membership at LA Fitness West India Quay.

 

After having reviewed your account and the notes made, of previous

correspondence and conversations, I regret that I am unable to differ from

the information that has already been provided to you in previous

correspondence from my colleagues.

 

Once you have signed and agreed to the membership contract an

automated email is sent to the email address you provided at the point of

sale. This includes a copy of your contract and the Terms and Conditions

applicable.

 

The onus is on you to read and understand the terms and conditions

before agreeing to be legally bound by them.

 

As with all LA Fitness contracts you were entitled to a 10 day cooling off

period to allow for any disputes or issues to be resolved whilst you are still

able to cancel without penalty. As we received no communication from

you within this timescale we assumed that you were happy with the

agreement.

 

You are still within your initial period until 31st March 2014, therefore, I

regret will not be able to cancel your member'ship until this date unless:

 

You have an illness or injury that prevents you from using the club

Yoy have been made redundant

You have moved to a new address that is more than 10 miles from the

nearest club.

 

If your reason for cancelling your membership falls into one of the above

categories we will require relevant documentation to support your cancellation request which should be sent to us at the address below.

 

A cancellation cannot be backdated so a termination will only be applied to

your membership upon receipt of your supporting documentation and with

one calendar month's notice.

 

Please accept my sincerest apologies for any inconvenience caused, I can

assure you this is not our intention.

 

-------------------

 

These guys are going to be like a dog with a pork chop Then again, so am I

My partner is concerned however about her credit rating.

 

In addition, we are moving house on the 2nd of October and I do not wish them to have my new address.

Not sure how we play that one out?

 

Kind regards mate.

 

Regynald

[slick132]

Hi Regynald,

 

It is important that they DO have your current address. If they don't, there's a chance they could take court action against you using the old address.

 

They could get a CCJ in default of your acknowledgement or defence, because you didn't get any paperwork about the court action. The first you'd know about it would be demands for payment from a DCA or court bailiffs.

 

I'd respond as follows :-

 

I refer to your two letters dated 20th and 24th September.

 

I have little to add beyond what I have said already. I note your failure to address the points I made about your staff being incentivised to set up memberships which customers don't want.

 

Your actions, or those of your gym staff, are a clear breach of Section 5, CPUTR 2008 which specifically applies to customers who are led into making a transaction based on incorrect or misleading information provided by a service provider.

 

Accordingly, I will now make a formal complaint to The OFT setting out the circumstances of my £1 Trial and the way in which my details were used to set up a 12 month membership agreement without my knowledge or consent.

 

It is, of course, your prerogative to take court action to recover whatever amounts you believe I owe. Any such action will be vigorously defended.

 

If you want contact details for the relevant person to contact at The OFT, let me know and I'll send them by PM.

 

Edited September 29, 2013 by slick132
typo

[regynald]

Hey Slick,

 

I was going to send the letter tomorrow... but the Citizens Advice got in touch with me. I took a few angles on this when I began my quest for the consumer... and these chaps have now responded... does this change the contents of my next letter?

 

 

-----------

 

Dear Mr X

 

Thank you for your enquiry to the Citizens Advice consumer service dated 7/9/2013. Your reference number for this case is CS XXXXXXXX and should be quoted in all further correspondence regarding this case.

 

I am sorry to hear about the problems you have been experiencing in relation to this issue, and we apologise for the delay in responding to your email and any inconvenience this may have caused, the delay was due to a technical fault that has now been resolved.

 

Based on the information you have provided, the key legal points in response to your enquiry are as follows:

 

As there is a potential criminal offence, we would like to forward your complaint to the relevant Trading Standards authority. In order to so, we require the address of your partner (the full name, address, plus the post code). Trading Standards Authorities are departments within local and / or County Councils; as such the postcode is required to determine which enforcement authority would be responsible. You can provide this information either by responding to this email or by calling the number below.

 

Whenever you engage a trader to carry out a service for you, e.g. fitting double glazing or repairing your car, your contract is governed by The Supply of Goods and Services Act 1982. This law states that any service must be carried out using reasonable care and skill, completed within a reasonable time (unless you agreed a specific date in the contract) and for a reasonable price (unless a fixed price was agreed). You also enter into a legally binding contract with terms and conditions you are deemed to have read and agreed to, it is always important to examine the terms of the contract.

 

An agreed contract is usually enforceable by both parties, but there are certain categories of consumer who are considered to lack the ability (or ‘capacity’) to contract and are legally presumed to not know what they're doing. This means that a consumer who lacks capacity to enter a contract can either end the agreement or permit it to go ahead as agreed. This protects those who lack capacity from being forced to continue with an agreement that takes advantage of their lack of understanding. However, if it wasn’t clear to the trader that the person didn’t have capacity to contract, and the trader had taken reasonable steps to determine capacity, then the contract is potentially still binding.

 

I would advise in the first instance that you make a formal complaint to the company via a recorded delivery letter (keeping a copy for your records) requesting the issue resolved within a set period of time. Please feel free to get back in touch with an update if the issue remains unresolved. In addition, sending your letter by “recorded delivery” will provide you with proof of posting; a signature on delivery and online confirmation of delivery.

 

The reason we suggest this, is just in case you and the trader fail to reach an amicable resolution. Having a record of your correspondence, and confirmation of delivery, could help demonstrate how and when you attempted to resolve the dispute yourself, should you need to escalate your complaint. Furthermore, the trader would find it difficult to maintain that you have never actually raised a complaint with them if they have signed for your letter. This may be helpful if you consider Court action or some form of formal / managed dispute resolution in the future.

 

Alternatively, you may consider obtaining a Certificate of Posting - from the Post Office - when you post your letter. Although this does not prove delivery, it can help to show that you sent a letter, on a particular day, to a particular address.

 

There are sample letters available on our website which you may find useful at the following link:

 

If you require any further advice or information about this case, please do not hesitate to contact the Citizens Advice consumer helpline on 08454 04 05 06 quoting the case reference number.

 

Thank you for your enquiry.

 

Isaac

Citizens Advice consumer service

 

-------

 

Happy to go as is, but may be an idea to quote 'parts' of this letter or refer to it?

 

Cheers

 

Chris.

[regynald]

How do i respond to trading standards... small donation on its way

[slick132]

Hi Reg,

 

I'm not sure why they say there's potentially a criminal offence. Even if this is true to some degree, it is highly unlikely to be acted upon.

 

In any event, give the CAB the info they want re YP's address so they can fwd the matter to Trading Standards. It can do no harm.

 

You can also include a extra para in my draft letter above :-

 

........ without my knowledge or consent.

 

I have also been told by the CAB that there's a potential criminal offence relating to The Supply of Goods and Services Act 1982 and they are making the necessary report to the appropriate Trading Standards Office.

 

It is, of course, your ........

 

[regynald]

Hi Slick

 

Great news... Just retutned home from holiday and a complete climbdown and apology has been issued by LA Fitness to the point they were almost begging for the cancellation and no legal comeback from the OFT and Trading Standards. I am in shock to be honest... it was business grovelling. Thanks so much for your help... Another point to the consumer and I hope my winning fight spurs others to challenge these unscrupulous rascals rather than believing there illegal and empty threats.

 

Thanks again... my partner is thrilled!

 

Regynald.

[slick132]

Hi Regynald and thanks for the update.

 

I'm really pleased to hear the gym has backed down on this. They need to accept responsibility for their employees actions.

 

Thread title changed to reflect your win and, if you can manage any donation to the site, it's always appreciated.