Please help - Debit Finance Collections & Gym membership cancellation problems!

Rebecca2013

I am a total newbie on here but I could really do with some advice as to how to go about this issue I'm having with my gym membership.

In January 2013, I applied for a membership at a local gym. It is an individual gym, it isn't owned by a large brand or anything like that. I have applied once before in the past (2011) and at that time they told me that all I had to do was pay £12 for a card which would last 6 months before it expired, and then every time I came to the gym I had to pay £2.50 for the use of the facilities. Although this may seem like an odd or old-fashioned way of doing things, it worked fine for me, and when I wanted to stop going to the gym I simply handed my card in and didn't go back.

However, this year, on the 1st January 2013 they changed the whole system. It is now £20pm membership, plus admin fees, induction fees etc. I paid all of the necessary fees as I wanted to apply for this. When I asked the two women who were helping me with my application at the reception (neither of them seemed to have any idea what they were doing and it took me over an hour to get the application done), they told me that the membership was not subject to contract and I could cancel any time I wanted to, like the old membership was. I told them that this was very important as I was moving away in May 2013 (next month) and therefore would not be able to pay for a full year's membership. Again, they told me that this would be fine. The entire process was completed on the computer screen in front of the receptionist, which I was not shown at any time. I did not get to see any T&Cs, I simply signed a form which only said that I confirmed that I was responsible for my own actions & health & safety at the gym and they would not be held responsible for any injury that occurred, etc etc. I didn't see anything about a 12 month contract and so I happily signed. Another dodgy thing I noticed about the gym is that while you have to sign a form and pay £7 saying that you had an induction, both me, my boyfriend and my sister all did not receive a proper gym induction as the boy performing the induction simply said "have you ever been to a gym before? Oh okay, I'll leave you to it then". Obviously alarm bells should have been ringing at this point, but since you receive the induction after you've signed, I didn't really think there was anything I could do.

4 months on, and I have just been looking into cancelling my membership as I am moving house 300 miles away in a month's time. Now the gym are saying that I am tied into a 12 month rolling contract and I am not allowed to cancel until the 12 months are up, and after the 12 months have been paid I then need to pay for a further month because I need to give a company called Debit Finance Collections 30 days notice before I can cancel. The T&Cs up on the internet WERE NOT THERE when I applied - but it says "we reserve the right to change these T&Cs without notice" on them. I do not have a copy of my contract (I wasn't given one at the time and didn't even see my own application). I have read other stories on this forum of people with a similar situation who have ended up being charged extortionate amounts of money for missing payments; my stepdad who is a lawyer says that I should cancel my direct debit and not give them any more of my money because they will end up automatically taking these extra "cancellation fees" and "bounced debit fees" out of my account without my consent. However I'm frightened of doing this because I am only 19 years old and don't want to end up having my car repossessed or something, although i will be moving house in a few weeks time.


Does anyone know what will happen if I cancel the direct debit? Is the gym being unlawful by changing its T&Cs AFTER I applied and asked if I could cancel at any time? Does it even matter that the staff told me false information if I don't have proof that they said this? Does it matter that I don't have a copy of the contract and was not shown a copy of the T&Cs?

Thanks so much in advance for any help anyone can give.

unholyangel

Give them written notice of cancellation. If they quote the 12 month contract minimum at you again......ask them for a copy of the signed contract proving that you agreed to be bound by those terms.

T&C's on a website are not enough for something like this as they are not durable and can be changed after agreement has occurred.

Also, are they saying that you're effectively bound to them for 13 months? Did you sign a credit agreement with the management company? You really need to find out exactly what you have signed with this company and who your contract is with.

Gym contracts are notoriously unfair but thankfully, they have been challenged a few times - most famously is probably OFT v Ashbourne Management in the high courts.

Rebecca2013

Thanks for your reply. I've just gone down to the gym and demanded to see where there was proof of the contract I signed, such as a photocopy etc. They told me that they couldn't see this unless I had ID - I did have my drivers license but I didn't have my gym card on me so they said I couldn't see it...strange. They told me that they would email it to the email address they have on file for me, and asked me to write it on a piece of paper to prove that I knew which address it was. They told me that on their system it shows that they emailed me with proof of my signed contract on the 4th January 2013, however I only have a welcome email with no attachments. I still haven't received the copy of my contract they said they'd email me with, so I'm waiting on that. I suppose if they have no evidence that I signed anything because they've either lost my contract or won't show me it because there is something dodgy in there, then I will just give them notice of my cancellation in writing and cancel the direct debit.

Yes, they are telling me that I am bound to pay for 13 months because I have to give the Debit Finance Collections company 30 days notice AFTER I have finished the 12th and final payment to the gym. I feel like I'm hitting a brick wall with these people because the staff don't really seem to know what they are doing and can't give me any information; I definitely did not sign a document with the Debit Finance Collections company though. I didn't have any idea that they existed until I read the terms and conditions. I am particularly angry because the lady I just spoke to at the gym was the same lady I spoke to when I applied in January and she denied all knowledge of saying that I was able to cancel the membership.

I suppose the best way to proceed would be to wait and see what evidence they come up with, and if there's nothing then just give them my written notice and cancel...

unholyangel

Rebecca2013 wrote: »

Thanks for your reply. I've just gone down to the gym and demanded to see where there was proof of the contract I signed, such as a photocopy etc. They told me that they couldn't see this unless I had ID - I did have my drivers license but I didn't have my gym card on me so they said I couldn't see it...strange. They told me that they would email it to the email address they have on file for me, and asked me to write it on a piece of paper to prove that I knew which address it was. They told me that on their system it shows that they emailed me with proof of my signed contract on the 4th January 2013, however I only have a welcome email with no attachments. I still haven't received the copy of my contract they said they'd email me with, so I'm waiting on that. I suppose if they have no evidence that I signed anything because they've either lost my contract or won't show me it because there is something dodgy in there, then I will just give them notice of my cancellation in writing and cancel the direct debit.

Yes, they are telling me that I am bound to pay for 13 months because I have to give the Debit Finance Collections company 30 days notice AFTER I have finished the 12th and final payment to the gym. I feel like I'm hitting a brick wall with these people because the staff don't really seem to know what they are doing and can't give me any information; I definitely did not sign a document with the Debit Finance Collections company though. I didn't have any idea that they existed until I read the terms and conditions. I am particularly angry because the lady I just spoke to at the gym was the same lady I spoke to when I applied in January and she denied all knowledge of saying that I was able to cancel the membership.

I suppose the best way to proceed would be to wait and see what evidence they come up with, and if there's nothing then just give them my written notice and cancel...

If you're absolutely 100% sure that you didnt sign a credit agreement and/or a contract stating 12 months, I'd say do as above, given written notice of cancellation and cancel the DD. Send your cancellation by recorded delivery and keep a copy for your own records as you will likely need it at a later date. Mostly likely you will start receiving letters from debt collectors.

If you're less than 100% sure, personally I'd try and find out for definite. If a credit agreement was involved or you did indeed sign a written contract stating 12 months.....you may have additional problems of marks against your credit history and/or owing them a large part of the remaining contract value + fees.

Their term stating cancellation cant be given before the 12 months is up (effectively making it a 13 month contract) is covered somewhere I'm sure, perhaps in OFT v Ashbourne. Or perhaps Unfair contract terms guidance. I'll have a look and see what i find.

unholyangel

Original term
This agreement shall commence on the connection date and shall
continue for the 'minimum period' of 12 months and thereafter until
terminated by no less than three months'notice in writing given by either party to the other. Such notice to be given not before the expiry of the minimum period.
Action taken
New term: This agreement is for a minimum period of 12 months … it may be terminated by giving one month's notice, which commences on or after the end of the initial 11 months.

8.1 A clause which states how long a contract has to run is likely to be among its most important 'core' terms24 If a lesser term in small print can be used, relying on customer inertia, to extend the contract period beyond what the consumer would normally expect, it is not a core term, and is liable to be considered unfair.

The first is a term that OFT have taken action against, it was in breach of the above 8.1 as it has the effect of extending the contract beyond the agreed 12 months (hence why notice can now be given after 11 months). The term detailing 30 days notice cannot be given before 12 months minimum term is up would fall under the same scope.


Not that its really relevant if they didnt advise you of the T&Cs at the time that you became legally bound, but if they've messed up over something so simple....they've likely made other mistakes. And when a term is unfair, it is legally unenforceable.

It is also a condition for fairness that consumers be allowed to read and understand terms before being bound by them and that legal jargon should not be used.

Rebecca2013

Thanks again for so much information, this really is so useful. As an update, i've spoken to a member of management at the gym and this is what they've told me:

Basically, I didn't sign anything physically, they have no evidence or proof of any contract I signed because "it's all done electronically now". She said "when you joined in January, a member of staff on reception would have shown you the terms and conditions on the screen of the computer, which you would have then (through word of mouth, not in writing) agreed to, so she would have ticked a box on the screen saying you agreed". So they don't have anything with my signature on it...so I guess that means I am 100% sure that I didn't sign for this contract. I'm disgusted that they are trying to tell me that this "ticky box" situation is something that binds me by law to keep paying, it's ridiculous. I'm going to do what you advised and send my cancellation notice in writing recorded delivery. If debt collectors start giving me trouble then I suppose there isn't anything they can do without proof that I agreed to this contract. Ever heard of a "tick box" being used as evidence that a customer wanted to be tied into a contract like this in the past? :S

bod1467

Rebecca2013 wrote: »

Ever heard of a "tick box" being used as evidence that a customer wanted to be tied into a contract like this in the past? :S

Yes ... for contracts concluded online. Not sure they could argue the same case for contracts concluded face-to-face though - in such situations there's an opportunity to obtain a physical signature. (Even if they subsequently scan it and store it electronically).

unholyangel

Rebecca2013 wrote: »

Thanks again for so much information, this really is so useful. As an update, i've spoken to a member of management at the gym and this is what they've told me:

Basically, I didn't sign anything physically, they have no evidence or proof of any contract I signed because "it's all done electronically now". She said "when you joined in January, a member of staff on reception would have shown you the terms and conditions on the screen of the computer, which you would have then (through word of mouth, not in writing) agreed to, so she would have ticked a box on the screen saying you agreed". So they don't have anything with my signature on it...so I guess that means I am 100% sure that I didn't sign for this contract. I'm disgusted that they are trying to tell me that this "ticky box" situation is something that binds me by law to keep paying, it's ridiculous. I'm going to do what you advised and send my cancellation notice in writing recorded delivery. If debt collectors start giving me trouble then I suppose there isn't anything they can do without proof that I agreed to this contract. Ever heard of a "tick box" being used as evidence that a customer wanted to be tied into a contract like this in the past? :S

Tbh, its ridiculous how often this happens. Even with people specifically asking about cancellations. In future, record the calls or ask them to put it in writing. If they're unwilling to put it in writing, as a general rule I dont trust them/the information they provided.

Everything being verbal doesnt mean they have no claim precisely, but small claims goes on the balance of probabilities. So a judge is going to listen to your story, listen to theirs and then decide which is most likely. Its entirely likely he'd say in absence of express terms, 30 days notice is sufficient.

Just in case it gets to that stage, do you know anyone who also took out a gym membership who didnt receive notice of the terms and conditions? Do you have anything dated from around that time which would "prove" that you were aware you would be moving in May? The reason I ask this is because if you can show this to a judge, it would give greater weight to your story of "i asked because i knew i was going to move home in may".

I have a feeling this is going to be a minefield though as DFC are not unknown on MSE and other consumer websites.

unholyangel

Have the gym passed your details on?

I know i've asked this before but are you 100% sure they haven't signed you up to a credit agreement? Just with them saying "you have not contacted us directly", it makes it sound that you are indeed in a contract with DFC and its likely a credit agreement if they're saying notice has to be served to them (but this term was one of the ones ruled unfair in OFT v Ashbourne - since you can sign up with the gym then you should be able to deal/cancel with the gym).