Alex Heney wrote in
news
On Tue, 9 Jan 2007 19:25:03 +0000, "Steve Walker"
wrote:

Alex Heney wrote:

You had the T&C. You have had the chance to read them, and could
easily have put in your cancellation two months ago if you had
bothered to find out that was the notice period.

Perhaps not - this is a well-rehearsed game for the gyms and it's
common to find that notice can only be given after 12 months have
expired.


IF that is the case, then that term would be unfair and unenforceable.

But he did not suggest that was the case here.

Wasn't the practice of "inertia selling" made unlawful some years ago? The
Readers Digest used to practice it - does it still do so?

--
gbh
gbh04 is a spamtrap
all post is deleted

Have a look at the OFT guidance on unfair terms in this type of
contract:

http://www.oft.gov.uk/NR/rdonlyres/8...9/0/oft373.pdf

Consider not just whether the notice period is excessive, but also
whether the term was 'hidden' (i.e. you had no real opportunity to read
it before you signed, and it was not brought to your attention).

If your payments were set up for a 12-month period rather than an
indefinite period, this would tend to suggest that you'd made a fixed
term contract rather than a rolling one -- helping to support your
case.

There's probably enough uncertainty about whether the terms are unfair,
to make it not worth the company's while to sue for 2 months' fees.


If adverse information is passed to a credit reference agency, you may
be able to challenge this (ultimately through the Information
Commissioner). Punishment via your credit rating is not acceptable
where there is a genuine dispute about liability. Which? magazine
reported on a case (a little while ago now) where an alleged debt under
a hire purchase agreement was disputed, and the lender put this as a
default on the credit reference file (but apparently had no intention
of pursuing the money they said was owed). After the IC's
intervention, the information was removed from the credit reference
file.

On Wed, 10 Jan 2007 10:10:10 +0000, gbh wrote:

Alex Heney wrote in
news
On Tue, 9 Jan 2007 19:25:03 +0000, "Steve Walker"
wrote:

Alex Heney wrote:

You had the T&C. You have had the chance to read them, and could
easily have put in your cancellation two months ago if you had
bothered to find out that was the notice period.

Perhaps not - this is a well-rehearsed game for the gyms and it's
common to find that notice can only be given after 12 months have
expired.


IF that is the case, then that term would be unfair and unenforceable.

But he did not suggest that was the case here.

Wasn't the practice of "inertia selling" made unlawful some years ago?

Yes, but that is not what this is.

"Inertia selling" refers specifically to being sent something you did
not order, on the basis that if you do not return it then you will be
assumed to have accepted it and must pay.
--
Alex Heney, Global Villager
"No good deed goes unpunished" - Clare Booth Luce
To reply by email, my address is alexATheneyDOTplusDOTcom

"Tommo" wrote:
Alasdair wrote:

Companies tend not to sue for small debts these days but go down
the debt collector route. They then place a default notice on
the Credit Reference Agency files and blacken your reputation
without it ever going to court.

I think this is most unfair especially if it is a disputed debt
but I have never heard of anyone successfully sueing a credit
reference agency for defamation.

I can see that this would be a problem.

But (IIRC) you do have a right under te Date Protection Act to
require anyone storing data about you to correct their file. This
would (or at least should) include placing a note on the file
saying that the debt is disputed. Hopefully that would help a bit.

If there is an issue as to whether or not the debt is legally owed then
removing the derogatory information may not be required.

How about the customer suing in small claims to get a determination
that the debt is not owed? That that point the credit reporting
agencies would have to change their information or their actions would
be defamatory.

Stu

"bcc97" wrote in message
oups.com...

Have a look at the OFT guidance on unfair terms in this type of
contract:

http://www.oft.gov.uk/NR/rdonlyres/8...9/0/oft373.pdf

Consider not just whether the notice period is excessive, but also
whether the term was 'hidden' (i.e. you had no real opportunity to read
it before you signed, and it was not brought to your attention).

If your payments were set up for a 12-month period rather than an
indefinite period, this would tend to suggest that you'd made a fixed
term contract rather than a rolling one -- helping to support your
case.

There's probably enough uncertainty about whether the terms are unfair,
to make it not worth the company's while to sue for 2 months' fees.


If adverse information is passed to a credit reference agency, you may
be able to challenge this (ultimately through the Information
Commissioner). Punishment via your credit rating is not acceptable
where there is a genuine dispute about liability. Which? magazine
reported on a case (a little while ago now) where an alleged debt under
a hire purchase agreement was disputed, and the lender put this as a
default on the credit reference file (but apparently had no intention
of pursuing the money they said was owed). After the IC's
intervention, the information was removed from the credit reference
file.


Thanks for the info your opinion matches my view of the circumstances.

I wrote the following letter:

This serves to notify you of the cancellation of our contract with Esporta,
effective from the end of the commitment period, 28 February 2007.

The contract must not automatically renew. Automatic renewal of the contract
was never explained to us by your sales team when we signed the contract,
neither was a three month notice period to prevent his happening. The
contract was sold to us as a fixed-term 12 month agreement regulated by the
Consumer Credit Act 1974.

Any excessive notice period is in contravention of Statutory Instrument 1999
No. 2083, The Unfair Terms In Consumer Contracts Regulations 1999. I draw
your attention particularly to Schedule Two, Regulation 5(5) Section 1 (h)
"automatically extending a contract of fixed duration where the consumer
does not indicate otherwise, when the deadline fixed for the consumer to
express his desire not to extend the contract is unreasonably early".

Further, in an action brought against Esporta by the Office of Fair Trading
under the above legislation, resulting in an informal undertaking by Esporta
dated 22 Dec 2004, The Office of Fair Trading expressed specific
reservations that included where the member has already completed the 12
month Commitment Period, requiring him to give a further 3 month's notice if
he wishes to cancel the contract is excessive.

The final payment of £102.00 due under the terms of this contract may be
taken by direct debit from my nominated account on or about the 3rd February
2007, after which no further payments may be taken.

Please confirm your acceptance of this cancellation in writing.

Steve Walker wrote:

Alex Heney wrote:

You had the T&C. You have had the chance to read them, and could
easily have put in your cancellation two months ago if you had
bothered to find out that was the notice period.

Perhaps not - this is a well-rehearsed game for the gyms and it's common to
find that notice can only be given after 12 months have expired.

Indeed, even the Government has heard about it! Search for "gym
membership" at http://www.consumerdirect.gov.uk/ They don't give much
hope, but there are some get-out possibilities, like if the service
wasn't as advertised.

Chris

Stuart A. Bronstein wrote:
How about the customer suing in small claims to get a determination
that the debt is not owed?

I didn't think that this course of action is available in the UK. The
customer has to wait to be sued. If there's a dispute about liability
and the creditor won't sue, then the credit reference file should at
the very least make it clear that liability is disputed.

bcc97 wrote:
Stuart A. Bronstein wrote:
How about the customer suing in small claims to get a determination
that the debt is not owed?

I didn't think that this course of action is available in the UK. The
customer has to wait to be sued. If there's a dispute about liability
and the creditor won't sue, then the credit reference file should at
the very least make it clear that liability is disputed.

You can sue for a declaration that there is no contractual liability.
That is what Carton & Granada did with the Football league over their
alleged liability to guarantee the debts of Ondigital.

Tommo wrote:
bcc97 wrote:
Stuart A. Bronstein wrote:
How about the customer suing in small claims to get a determination
that the debt is not owed?

I didn't think that this course of action is available in the UK. The
customer has to wait to be sued. If there's a dispute about liability
and the creditor won't sue, then the credit reference file should at
the very least make it clear that liability is disputed.

You can sue for a declaration that there is no contractual liability.
That is what Carton & Granada did with the Football league over their
alleged liability to guarantee the debts of Ondigital.

You're right.

http://www.bailii.org/cgi-bin/markup...2002/1650.html

I didn't realise that you could claim for such a declaration (other
than in cases where there's a specific statutory right -- i.e. some
consumer credit cases).

However, I can't imagine a consumer doing so (and making a non-money
claim) for a couple of months' gym membership! I'd always try the
Information Commissioner route first, as there are no fees for this,
and it has proven successful in the past.

"Alasdair" wrote in message
...

Companies tend not to sue for small debts these days but go down the
debt collector route. They then place a default notice on the Credit
Reference Agency files and blacken your reputation without it ever
going to court.

Credit reference agencies record CCJ's an defaults on credit agreements.
This would not affect the OP if they had totally repaid their original 12
month loan and it had not actually gone to court for breach of contract.