Author Topic: How to deal with a collector over a gym contract  (Read 389 times)

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poker

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How to deal with a collector over a gym contract
« on: July 14, 2017 04:35:45 PM »
I once belonged to a gym. I enjoyed the gym. I had payments withdrawn from my bank to keep the gym membership current. I then changed banks. I went to the gym to give them the new bank information. They said there was a fee associated with changing banks (not in my agreement). I told them I would not be paying the fee that they could take my new bank information, take my cash, or our relationship is over. They said there was nothing they could do, so I left and sent an email to the manager of the gym. In this email I detailed the conversation and pointed out that they declined to accept my tendered payment. She responded that if I wanted to leave the gym I could pay another month (along with the fee to change my bank information) and a termination fee.

A few years later there is some weird collector on my credit report that has never contacted me, so I DV. They send me a copy of my gym agreement. My reports note that I dispute the debt. I have nothing else on my report to fight about, so how do I blast this thing off? The real issue would appear the gym sent an alleged debt to a collector that isn't owed.

Flyingifr

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Re: How to deal with a collector over a gym contract
« Reply #1 on: July 14, 2017 05:41:26 PM »
If it isn't owed, file suit against the CA for the FDCPA violation of misrepresenting the debt (that you owe it at all). Since the amount you sue for ($1,000) is probably more than the CA is dunning you for and certainly more than the CA's commission would be if they collected the entire debt, the CA should quickly see the foolishness of pursuing the matter and will probably seek a solution. Your solution would be, at minimum, to permanently remove the TL and a mutual walk away.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

I think of a telephone as a Debt Collector's crowbar. With such a device it is possible to pry one's mouth open wide enough to allow the insertion of a foot or two.

Debtors Exams are the perfect place for us Senior Citizens to show off our recently acquired Alzheimers.

Founder of the Credit Terrorist Training Camp (Debtorboards)

poker

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Re: How to deal with a collector over a gym contract
« Reply #2 on: July 14, 2017 06:20:56 PM »
That was my general plan. I haven't done this in a while (but in the previous decade I collected several thousand dollars cleaning this stuff up). I was so focused on looking for violations related to DV or continued collection activity I forgot about misrepresenting the debt.

I was away for a few years. I understand you wrote a book. I want to buy it but couldn't find it for sale.

Bruno the JDB Killer

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Re: How to deal with a collector over a gym contract
« Reply #3 on: July 14, 2017 08:41:45 PM »
I would sue the gym  for breach of contract and an unfair trade practice, state law permitting. I would name the CA as a co-defendant under the FDCPA and state consumer protection laws. The complaint would be 20 pages long and they would be throwing money at me to go away. That's just me, nice guy that I am. You do what you like.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

poker

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Re: How to deal with a collector over a gym contract
« Reply #4 on: July 14, 2017 09:55:51 PM »
I definitely would like to find a way to sue the gym. Also the manager of the gm personally.

CleaningUp

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Re: How to deal with a collector over a gym contract
« Reply #5 on: July 15, 2017 02:14:42 AM »
I don't see where the OP can get a breach of contract out of what he has relay to us so far.

No contract is going to be so detailed as to get into the internal administrative procedures of the gym's business, and I would be more than skeptical about a claim that the gym's contract didn't didn't spell out just exactly what the OP was liable for on cancellation.  It's not as if gyms and exercise facilities haven't been around this barn thousands, if not millions of times in the past decade or two of the commercial exercise business.

Suing the gym's manager for being a twit?  Good luck with that.  You're going to have to find another donkey onto which to pin the tail before you could even come close to finding a cause of action that would survive summary dismissal with an award of attorney's fees.

I would agree with FlyingIFR that the unfair and deceptive practices statutes might provide more relief, but even then, it is hard to see where trying to enforce contractual line items rises to the level of "unfair".

As for an FCRA and FDCPA claims against the collector?  From what has been detailed, the collector has gone by the book.  The OP issued a DV; the collector responded with material that clearly satisfied the abysmally low statutory requirement for valdiation.  The OP doesn't allege calling after DV and before validation, nor does he allege harassment or any other illegal collection activity.  As for the FCRA violation, the OP disputed, the OC correctly marked the trade line in dispute.

As for filing a 20 page lawsuit based on only parole evidence?  Well that's really going to impress a judge, now, isn't it?  Defendant goes for summary dismissal for failure to make a claim and sanctions for filing a frivolous suit in the form of an award of the plaintiff's attorney's costs.  Finding for the defendant with the defendant's legal costs.

As for the OP's desire to get this matter to blast off?  Beware that the thing might just crash before it even clears the the hold-downs.  And, it could take out a lot of things on the way down, the OP's credibility and wallet for example.
« Last Edit: July 15, 2017 02:18:52 AM by CleaningUp »

Bruno the JDB Killer

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Re: How to deal with a collector over a gym contract
« Reply #6 on: July 15, 2017 12:04:50 PM »
They said there was a fee associated with changing banks (not in my agreement).


Charging a fee not in the agreement is a clear breach of contract, provided it isn't really there. Quite a bit of the "20 page complaint" would be case law. Okay, maybe only 19 pages.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: How to deal with a collector over a gym contract
« Reply #7 on: July 15, 2017 08:40:19 PM »
Only if he OP can prove it up.

I'll take my crisp, precise, two-page complaint over your 20-pager any day.

Case law citations?  That's what a Memorandum of Law accomplishes if you are going to be citing everything that has ever been decided...And even then, you really need to pare your offerings to on-point citations of courts that actually have some sort of binding influence on the trial court.

BellEbutton

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Re: How to deal with a collector over a gym contract
« Reply #8 on: July 16, 2017 03:52:14 AM »
They said there was a fee associated with changing banks (not in my agreement).


Charging a fee not in the agreement is a clear breach of contract, provided it isn't really there. Quite a bit of the "20 page complaint" would be case law. Okay, maybe only 19 pages.

Would a contract have to state that if you change banks, the company charges a fee?   I guess it's possible, but I'm thinking a contract cannot always allow for every little possibility.

Also, breach of contract means that one party did not abide by the terms of the contract.  If the contract states that nothing new will be added, then adding a new term would not be a breach.   But if the contract doesn't include any such language, I'm not sure breach of contract would be the correct cause of action.

What about unfair practices instead of breach of contract?

I agree with CU about your 20-page complaint with case law.  The rules of most courts state that a complaint should contain "short and plain statements of the grounds" along with facts and statutes.  Case law is neither statute nor a fact of the grounds of the lawsuit.


BellEbutton

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Re: How to deal with a collector over a gym contract
« Reply #9 on: July 16, 2017 04:06:36 AM »


Breach of contract means that one party did not abide by the terms of the contract.  If the contract states that nothing new will be added, then adding a new term would not be a breach.   But if the contract doesn't include any such language, I'm not sure breach of contract would be the correct cause of action.

What about unfair practices instead of breach of contract?

I agree with CU about your 20-page complaint with case law.  The rules of most courts state that a complaint should contain "short and plain statements of the grounds" along with facts and statutes.  Case law is neither statute nor a fact of the grounds of the lawsuit.

poker

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Re: How to deal with a collector over a gym contract
« Reply #10 on: July 16, 2017 07:42:24 AM »
I believe (correct me if I am wrong) that tendering a cash payment that was refused ended my obligation to pay them anything.

Bruno the JDB Killer

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Re: How to deal with a collector over a gym contract
« Reply #11 on: July 16, 2017 01:23:33 PM »
Only if he OP can prove it up.

I'll take my crisp, precise, two-page complaint over your 20-pager any day.

Case law citations?  That's what a Memorandum of Law accomplishes if you are going to be citing everything that has ever been decided...And even then, you really need to pare your offerings to on-point citations of courts that actually have some sort of binding influence on the trial court.


Okay, ten pages. I only use my state's Appellate and Supreme Court cites. Lets them know what they're in for.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Bruno the JDB Killer

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Re: How to deal with a collector over a gym contract
« Reply #12 on: July 16, 2017 01:28:24 PM »
Would a contract have to state that if you change banks, the company charges a fee?   I guess it's possible, but I'm thinking a contract cannot always allow for every little possibility.

Also, breach of contract means that one party did not abide by the terms of the contract.  If the contract states that nothing new will be added, then adding a new term would not be a breach.   But if the contract doesn't include any such language, I'm not sure breach of contract would be the correct cause of action.

What about unfair practices instead of breach of contract?

I agree with CU about your 20-page complaint with case law.  The rules of most courts state that a complaint should contain "short and plain statements of the grounds" along with facts and statutes.  Case law is neither statute nor a fact of the grounds of the lawsuit.


It depends on how many causes of action you are pleading. I've written a couple that were only 3-4 pages, some that were much longer. Case law is optional, most attorneys in my state use it in case the judge isn't that familiar with the statute. For pro ses, it shows the judge you did your homework.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

CleaningUp

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Re: How to deal with a collector over a gym contract
« Reply #13 on: July 17, 2017 01:46:28 AM »

I believe (correct me if I am wrong) that tendering a cash payment that was refused ended my obligation to pay them anything.



You'd lose that one.  Mortgage servicing companies refuse to accept even certified check for less than the full amount if the mortgage has entered the foreclosure.

While you have a good argument that US currency is valid for settling any debt, it may not override the creditors' policies about bringing an account current.

Bruno...pleadings by the pound generally mean that the author is trying to blow smoke. 

Good complaints are easy once you understand the elements of the statute that are required to prevail in the action.  Once one has armed himself with this knowledge, the complaint writes itself...Statement of facts that satisfy the requirements of the statute, statement of the  the statute Shepard's citations  to establish the currency of precedence, and a statement of the claim.  Any order will do.

Conciseness and good logic prevails over bluster an overwhelming number of times.

Answering a complaint is a little more difficult if the complaint is clear, concise and logical.  The attack points are always the premises (facts), the logic, and, if the complaint is muddled, the interpretation of the statute that is being employed.




« Last Edit: July 17, 2017 01:55:30 AM by CleaningUp »

poker

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Re: How to deal with a collector over a gym contract
« Reply #14 on: July 17, 2017 04:26:12 PM »

You'd lose that one.  Mortgage servicing companies refuse to accept even certified check for less than the full amount if the mortgage has entered the foreclosure.



Would it lose if it was a tendered amount for the balance due made 3 days prior to the due date? I know it was 3 days prior because I looked back at the correspondence at the time. You seem to be comparing a payment of less than full amount that is late to a payment of full amount that is timely.