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    • Perhaps if you posted detail of this loan with history and who is threatening who with what ?   Andy
    • you have ofcourse sent them an SAR and put them to strict proof they have data of the old historic debt?   they cannot add anything historic without written proof!!   dx  
    • Rewrite a fresh particularised particulars of claim given that the court has ordered this.....lay it out as per the defendants statement format. You will have to submit an application notice N244 to change the defendants name....the fee will be £100.   Post a copy here of your intended particulars before submitting...you will have to conclude it with a statement of truth as you will be submitting it manually.Did the court give a date that this must be complied with ?   Andy
    • Not sure why the court hasn't got that 1st statement but the whole thing was a mishap anyway as the 1st call i had the judge had the wrong case.
    • I'm confused?   Are your posts from yesterday (concerning a claim against a national courier) connected with this thread (you suing a relative for non-payment of a loan) or something entirely different?   (I know you were criticised before for starting a new thread when you should just have continued the existing thread - suing your relative - but if this suing a national courier is entirely unrelated it ought to be a new thread.  You don't explain why it is a continuation of the existing thread.  Maybe it is, but you don't explain why...)
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Object: I need legal advices because I feel really (edit) and I would like to know if I can win this in court.

 

IMPORTANT .. PLEASE READ POST 19

Please let me explain my problem.

My wife suscribed a gym in june 2005. She benefited from an offer for 3 month I think, or anyway she onlly wanted to register for 3 months.

She filled in all the paper BUT DID NOT SIGN the accept terms and conditions box. On my side, as she asked me, I SIGNED the direct debit.

We have not been told the it was for an automatic renewal, neither that we have to write them a letter to cancel the subscription (after the 3 months).

Basically, they did not explained to us the way it works and we did not agree with the terms and conditions but I signed a direct debit form.

My wife then went in the gym for those 3 month. ( just to be exact she posponed the august month to september as she was entitled to as we were away for that month... Anyway, I don't think it makes any diference for our case.)

And, after september she never went back to the gym.

BUT GUESS WHAT ??? they have been debiting me for all that time ( till this month: june 2007... ie 20 months @ 46£).

 

I went to see them twice, trying to see the general manager who never accept to receive me. And the Manager just tells me that I have sign the direct debit and that I will be contacted by the general manager soon( when? who knows) by post or by phone...

 

On a matter of good faith as well, when I came , they checked on the computer and saw that my wife never came after september 2005. they did not offer to sort out the situation as I have been paying for something I never wanted and never used. As it did not cost them anything, a refund would have seem completely logical to me...

 

THEN I WOULD LIKE TO KNOW IF I CAN WIN THIS CASE IN COURT. Effectively, I just would like the 20 months (that I have NOT USED and never intended to) which have been charged to be refunded to me.

Could you also please tell me where I need to go to do it.

 

THANK YOU VERY MUCH IN ADVANCE OR YOUR HELP!

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I don't think the failure to tick the box would mean that you have not accepted the terms and conditions, so ignore that bit.

 

The most relevant parts are that you supplied direct debit details and that your wife did use the gym for the three months. The part about cancelling the direct debit will be stated in the contract. It should have been pointed out to you as well, but likely it is that they may well said they did. It is their word against yours.

 

The only way out I can find is to see if thre are any unfair terms in the contract. Also check things like the size of the text and the intelligibility of it. You will be best to take the documents to the CAB or a solicitor to have it checked.

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I don't think the failure to tick the box would mean that you have not accepted the terms and conditions, so ignore that bit.

 

The most relevant parts are that you supplied direct debit details and that your wife did use the gym for the three months. The part about cancelling the direct debit will be stated in the contract. It should have been pointed out to you as well, but likely it is that they may well said they did. It is their word against yours.

 

The only way out I can find is to see if thre are any unfair terms in the contract. Also check things like the size of the text and the intelligibility of it. You will be best to take the documents to the CAB or a solicitor to have it checked.

 

That's the most important bit imo.

 

Gyms base their memberships on Contract. They are not Private Members Clubs so membership to them is strickly contract.

 

Signing a DD does not form part of the contract and in any event it was the husband who signed the DD and the wife (whos name is on the contract) has not just ommited to tick a box but has NOT SIGNED. Therefore there is no contract.

 

Look at it in another way.

 

If my brother has no bank account but I agree to sign a DD from my Bank for the payments on a New Mortgage Application. He then decided not to sign the mortgage deed, do you think the provider would be able to force a mortgage on my brother?.

 

NO.

PUTTING IT IN WRITING & KEEPING COPIES IS A MUST FOR SUCCESS

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She filled in all the paper BUT DID NOT SIGN the accept terms and conditions box. On my side, as she asked me, I SIGNED the direct debit.

We have not been told the it was for an automatic renewal, neither that we have to write them a letter to cancel the subscription (after the 3 months).

 

Cyrano, in my view this is the heart of the matter in your case. I presume your wife filled in a gym registration form bearing the 3 month offer, but as you say did not sign the terms and conditions box.

 

I would say the fact that she used the gym during this time amounts to acceptance of a contract by conduct.

 

IF the forms she filled in for this 3 month offer did not explicitly state (or if the gym personnel did not expressely inform you) that you must cancel or renew once the 3 months are up, then you may have a right to challenge this contract on the grounds of misrepresentation.

 

The court will look at this form to determine whether in the small print, a post-3 month contract kicked-in.

 

In fairness, the gym ought to refund all the monies taken since your wife did not use the gym.

 

The other thing I find odd is that normally gym memberships are for a fixed term - monthly, quarterly, six-months, or annual memberships. And so how they can continue to take the 20 payments without sending you a gym renewal letter all this time is strange too.

 

Good luck.

 

Abs

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OK guys, First thank you very much for your help.

 

I think all this case is about knowing if I am bound to the term and conditions of this stupid gym whether or not my wife signed them.

So let me be a little bit more precise.

 

Then on the recto of the page: All my wife details have been filled in... And :

I have read the terms and conditions on the reverse of this form and agree to be bound to the terms

Below: Signature is left blank

 

My answer to Gyzmo would be : what is the point of signing to accept the terms and conditions by signing them if the fact I go there once valid my acceptance... ( but you might be right ???)

 

On the back: 1 chapter interest us:

 

Acceptance. Interpretation and variation

4. Every member of a center (a "member") shall be subject to these Terms and conditions. It is the member responsability to read the Terms and Conditions before signing the application form. By signing the application form the applicant member is deemed to have read, understood and agreed to be bound by these these terms and conditions

( AS I MY WIFE HAS NOT SIGNED I SHOULD NOT BE BOUND TO THESE TERMS AND CONDITIONS, NO ??? )

 

5.The decision to accept any application shall be at the absolute discretion of the company. If an application is accepted by the Compagny, the applicants membership of the center shall commence upon the date of acceptanceor payment of subscription fees in accordance with clauses 8 or 9.

 

6. Acceptance by the company of an application for the membership shall constitute a binding contractual agreement between the company and the Member, uponthese terms and conditions and the rules and regulations or bye-laws of the centre from time to time in force

 

After you have the payment terms where I am effectively a member I should theoritically with a letter as specify below...

 

HERE WE ARE... ANY OPINION?

WHAT SHOULD I DO?

WHERE SHOULD I GO?

WHO SHOULD I PHONE?

I definatly intend to go forward with this but have no clue how to do it. thank you for your help.

Cyrano

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Please Anyone !!! Help !!!

 

If the agreement is not signed there is no agreement. The fact that visits were made imo are irrelevent.

 

Further you signing the DD makes no difference. The DD is not part of the agreement.

 

Ask them when you can vist the office to inspect the original signed agreement. If they cannot produce one it doesn't exist.

PUTTING IT IN WRITING & KEEPING COPIES IS A MUST FOR SUCCESS

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Yeap that was my feeling No signature => no agreement.

But when I go to see them, they clearly laugh at me. ( It is clearly part of their business plan: no compassion, no help to try to sort out the matter whatsoever...)

They always say that I need to wait for the general manager to contact me (voice or mail).

But now that the assistant secretary stopped my DD (according to what she says) and me on my side stopped the DD with the bank, I fear they will try to use that against me as I still have not produce any cancellation letter.

 

1. Then Should I write a letter to them ?

2. How can I do to sue them?

3. I wrote that, do you think it is a good idea ( It is to make sure they acknowledge that the DD has been stopped. And to show that on my side, I am fair andlet them know taht i am ready to take further action

=======================================================

I just wanted to let you know that your assistant has cancelled the direct debit from july 2007 as it appears clear to her that it was related to no active membership.

I deeply regret that you never want to meet me when I come to your Center to sort out the problem we have. I explained already my problem to X and Y and I am sure you are aware of it. ( If not, please call me ASAP)

I phoned X straightaway on the 1st of june, the day I discover you were still debiting me. She asked me to come to meet Y. I came on tuesay 5th of June to meet Y. He was also unable to sort my problem and told me you will have to look into my wife’s file first and you will come back to us by phone or by mail. We are the 11th of June and I have still received any call or any letter.

I reinsure you one more time you can contact me anytime at the following number 07950000000 or by mail at the address mentioned above.

I will wait another 7 days, You would have had 2 weeks to look into the problem. It sounds to me a fair time to let you the possibility to get in touch with me to sort this problem between us or to ask me more time if you need it.

Just to be fair with you and to let you know in advance, if I don’t receive any news from you by the 16th June, I will take further legal action.

=======================================================

What do you think ???

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Is the agreement you have a true copy of the original agreement? Many terms and conditions forms are now printed rather than using carbon copies, you sign one copy for the other half and keep another copy which you are supposed to sign as well - I know that I rarely do.

Lloyds TSB, Total Charges £900, Claim Filed for £1379 - Settled

 

Sainsbury's Bank Credit Card, Total Charges £90 - Settled.

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Cyrano,

 

as you wish to reclaim the various direct debit payments taken from you for gym services your wife did not use, in my view you could start by totalling all the charges you want refunded and then write a letter requesting a full refund. Give them a deadline, say 14 days, afterwhich if no satisfactory response is forthcoming, you will take legal action.

 

If you then have to go to court, download an N1 claim form from Her Majesty's Court Service:(https://www.moneyclaim.gov.uk/csmco2/index.jsp

 

Fill in the form with the relevant details - the gym's full legal name (defendant), the amount you are claiming, etc. The Court will serve them this claim and they will have to file a defence within a specified period.

This is where they will get thinking! Do they have a valid contract with you for the direct debits taken from you after the free period ?

 

As this will now be a court matter, I am certain they will not ignore it/you.

 

Good luck.

 

 

The

 

I am sure once they receive a

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The failure to sign a document does not necessarily render it void. If there is evidence that the terms and conditions have been brought to your attention (and three months visiting a gym, plus signing a direct debit indicates that the contract was read nad it would be understood that payments would begin). The signing means that you are deemed to understand the terms etc. That does NOT mean that not signing means you do not accept the terms. A contract can be inferred by performance as well as by what a document says.

 

If you do win (and I would be surprised), it would be on a technicality. As far as I can see, a contract has been entered into and forgotten about. That is not the fault of the gym. I see little reason why they should not be entitled to the money. I have also asked a couple of solicitors I work with about this matter and they are in agreement.

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I have a few questions:

1. What is the point to sign a contract if the contract is valid only if you sign the DD. ( If this would be the case, the contract would have only one signature for the DD and the contract itself, why is there 2 signatures then?)

2. My wife originally only wanted to go there for 3 months, and It has not been said to her that she needed to cancel anything, they told her to file the DD implying that the DD is only for 3 months.

3. As a matter of good faith, as the gym has not been used for 19 months and there is absolutly no costs to them, I don't see why they should not be able to refund me.

4. The monthly price increased from 43 to 46£ during that time and we did not either receive anyhing to let us know that ( however we received advertising from them to come and join the gym again...)

 

Honestly, my wife did not want to go there for more than 3 month, I did not wanted to pay more than those 3 months. She has not been explained the way it works. they only told her taht we need to ay by DD (implying indirectly that you pay for what you want and ask: only the 3 months!!!). We did not sign the contract. they took the money and they could go away with it.

If this is the case, it is absolutly discusting

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I'd just contest the DD with the bank under the terms of the Direct Debit Guarantee (paid for services you never received) and see what they do then.

 

Not sure if there is a time limit and 20 months is a long time though.

 

Maybe start off by sending the Gym a S.A.R. to get written confirmation that your wife didn't actually visit the gym after the first 3 months

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1. The direct debit is just a form of payment.

2. There will, somewhere, be something that states the membership is free for 3 months and will continue afterwards. The fact that a direct debit was included should hint at this. If it automatically stopped after 3 months, they would not ask for a direct debit or any other form of payment.

3. Imagine taking out insurance for 2 years and you don't make a claim. You cannot ask for your money back. You are paying to utilise the services within the confines of the contract. The fact that you chose not to is neither here nor there to the gym.

4. If you are claiming the contract is invalid, then you cannot rely on the price increase as it wouldn't affect you. If you are claiming the contract is in force, then you may have a case from the time of the price increase. You cannot have your cake and eat it.

 

The whole point of these "free" offers is that they company hopes you will forget about it and fail to cancel, thus binding you to a contract that you may not want. They often contain clauses that you must cancel within the first three months, otherwise the contract will continue. There is no way they will simply give you 3 months for nothing with no catches - that is just unprofitable. I am not condoning the practice - I think it stinks. the law will protect you from an unfair contract. It wil not protect you from entering into an bad deal, which is what has happened here.

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Hi Gyzmo,

 

I clearly understand the point of these Companies (in this case my gym). It is their right to attempt to make you sign something and hope you'll forget and make money with it. (which is already not totally fair but right and legal).

BUT IN MY CASE: My wife only wanted a subscription for 3 months, the duration of the the offer. We only did the DD thinking it would be only for those 3 months and nothing more. And nobody told us that we were entering an undefinite membership that we have to cancel when we want to stop it.

The only place it is written is the "contract" that we did not sign.

To me it is exactly like I bought a sound system for £ 900 and we agree to pay in 3 times £ 300 per month (with no interests), I give my DD to do that and I discover that 2 years later the seller of the sound system is still debiting me 300 every month. And when I ask why, he tells me it is because I gave him the DD details and he has got a paper which I have not signed telling me that however I should have stopped the DD after the 3 months....

 

Or In once sentence: I paid for something I did not want and never intend to buy. I have been forced buyer even without knowing it and with no evidence of it as the contract with the undefinite subscription and his cancellation process has not been signed by us.

 

And the worst to me is that it does not cost anything to them, then I really do not see any reason why they would not refund me...

 

That was for the principles bit. I went back this morning to see the manager and unfortunatly for him. I caught him at the vending machine. He had no choice but to listen to me this time. He understood my problem, was nice, said he will look into it and he will call me on monday to give me an answer.

To be continued ...

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I do sincerely hope you get your money back, but I am afraid the point is being missed.

 

You have admitted that the contract states the membership needs to be cancelled after three months to prevent charging, but this was not done., and as a result, payments continued to be made. As I said before, not signing a contract does not necessarily mean that it is unenforceable. The contract has been performed in the way it says it will. This is different to the scenario you give, in which case there is a clear breach of contract as the company has taken more than it should have done. That is not the case with the gym. They have done what they say they will do - nothing more.

 

I hope the situation is resolved in your favour, but it really will be a case of goodwill from the gym if they refund your money.

 

Your best bet is to see if there are any unfair terms in the contract, which will involve seeing a solicitor (try to find one that does a free consultation) or going to the CAB (free of charge, but donations welcome)

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  • 4 weeks later...

Finally after another meeting with the GM of the gym and a delay of another 10 days, the GM accepted to meet today to settle. I'll keep you posted about the result.

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I have changed your thread title as this site does not give legal advice only informal advice .All advice is given without prejudice and without liability if you need legal advice you should see a qualified insured professional.

When you want to fool the world, tell the truth. :D

Advice & opinions of Janet-M are offered informally, without prejudice & without liability. Use your own judgment. Seek advice of a qualified insured professional if you have any

doubts.

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