Gym/Clever Fit wants to collect nonexistent debt

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Hey everyone,

 

Can someone please help me to figure the proper response/action to the lawyer firm that my former gym (Clever Fit) hired to charge me for the two months (+ all other "debt" fees) when they were closed during Corona-Crisis?

 

So here is the case:

 

* I always paid in cash, every month, never gave them SEPA mandate (probably irrelevant, just in case).
* I properly notified them about termination and received an official confirmation that the last contract day is June 30th, 2020 (was long before all this Corona problems).
* Then they closed somewhere in the middle of March because of Corona-Crisis and re-opened only in June (I paid for March entirely and have a receipt)
* If I understood this article correctly people are not supposed to pay for the period when gym is closed. And if people are somehow charged then they are entitled either for refund, extension of the contract or some "vouchers". But since I always paid in cash they couldn't automatically charge me and I was sure I don't have to pay for that either.
* When in April I received a letter from them that I should pay for April, I sent them e-mail (noted in their letter) that I'm not going to pay for any month that they are closed, and that my termination date is already known and irreversible, and I cannot and don't want to extend it.
* There were a number of e-mail conversations (in German, I didn't use English to avoid misunderstanding) till September, and their stance was something like this `Diesbezüglich haben wir Rücksprache mit der Rechtsabteilung gehalten. Diese teilte uns mit, dass wir Anspruch auf Zahlung der vertraglich vereinbarten Beiträge für die entsprechende Laufzeit.` and at some point they stopped replying to my emails.
* When they re-opened in June I transferred (on 09.06.2020) money for June + a full half-year service fee, and transfer included the following "Verwendungszweck":`Letzler Beitrag für JUNI (02.06.2020 - 30.06.2020) und halbjährliche Servicepauschale. My Name and client number`. I have a bank statement that clearly indicates that note.

 

But what they eventually did is that they claimed this transfer was for April and May (when they were closed, funnily enough the amount is the same) and that I should still pay for June + service fee. I pointed to their mistake providing a bank statement and reminding them that I'm not supposed to pay for May and April, but they never replied. And today I received a letter from their lawyer firm with the following content (I highlighted the part where they specifically mention period for what I already paid):

 

```
in vorbezeichneter Angelegenheit zeigen wir an, dass wir die rechtlichen Interessen der Firma CF Berlin GmbH anwaltlich vertreten. Eine auf uns lautende entsprechende Legitimierung wird anwaltlich versichert. Sie sind Ihren Zahlungsverpflichtungen aus dem mit unserer Mandantschaft geschlossenen Mitgliedsvertrag nicht nachgekommen. Art und Höhe der bislang offenen Haupt- und Nebenforderung entnehmen Sie bitte dem beiliegenden Forderungskonto. Aufgrund des eingetretenen Zahlungsverzugs sind Sie gern. §§ 286 Abs 1, 288 BGB verpflichtet, die damit einhergehenden Verzugsschäden zu tragen. Hierunter fallen auch die hier angefallenen RA-Gebühren, die Sie bitte ebenfalls dem beiliegenden Forderungskonto entnehmen.

...

Namens und in Vollmacht unserer Mandantschaft fordern wir Sie auf, die Gesamtforderung bis spätestens zum 17.10.2020 auf eines unserer Kanzleikonten zu überweisen. Wir haben Geldempfangsvollmacht. Bitte geben Sie immer unser genanntes Aktenzeichen an, damit Ihre Zahlung hier im Haus zugeordnet werden kann. Sofern Sie den Gesamtbetrag nicht in einer Summe zahlen können, besteht die Möglichkeit, eine angemessene Ratenzahlung zu vereinbaren. Zwecks Klärung der Abzahlungsmodalitäten setzen Sie sich bitte ebenfalls bis zur oben genannten Frist schriftlich mit unserer Kanzlei in Verbindung. Bei fruchtlosem Fristablauf werden wir gerichtliche Schritte gegen Sie einleiten. Es wird ausdrücklich auf die hierdurch für Sie entstehenden Mehrkosten und Unannehmlichkeiten hingewiesen.

...

* Mitgliederbeitrag vom 01.06.20 bis 30.06.20, Hauptforderung 5 %-Punkte über Basiszins (Zinsen ab Zustellung MB) 19.90€
* Servicepauschale vom 01.01 20 bis 31.05.20 Hauptforderung 5 %-Punkte über Basiszins (Zinsen ab Zustellung MB) 19.90€
* Mahnkosten 22.50€
* RA-Geb. Nr. 2300 VV RVG (Gegenstandswert 39.80 €) Basiszins -0,88 % 70.20€

 

GESAMTFORDERUNG 132,50 €
```

 

Did I do something wrong in this case or am I missing something? And what would be the appropriate course of action for me?

 

P.S: One could think I could support them in this hard time and pay for the period when they were closed. And initially they claimed just 39.80 €, so it's not about money really. The thing is that gym was dirty all the time, most of the trainers were incompetent, some were rude. That's why I decided to terminate the contract in the first place and I don't want to "support/finance" them just out of principle now.


Thanks a lot for the help!
Alex

 

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17 minutes ago, snowingagain said:

Verbraucherzentrale seem to have covered this.  Details of how to complain about this.  Translates well.  I have not read it all though, just scanned it.

 

https://www.verbraucherzentrale.de/aktuelle-meldungen/vertraege-reklamation/aerger-um-kuendigung-so-setzen-sie-ihre-rechte-beim-fitnessstudio-durch-50351

 

Thanks for reply @snowingagain! I've read this one already, they basically just recommend you to:

  • have a proof of the contract termination in case fitness studio wants to automatically extend your contract
  • stop paying for the months when studio is closed (e.g. cancel direct debits/standing orders)

But neither is a problem for me since I 1) have a proper written confirmation of the termination and they don't try to extend it yet and 2) they didn't have any way to automatically charge me so they just used my June payment to cover the months when there were closed and trying to collect June "debt" with the help of lawyer firm.

 

I'm not sure how to properly react to the lawyer firm notice I received today and what they can do to me if I don't object in any way. I guess I can go to the lawyers as well and pay them to defend me, likely it will be a win case, but I'm wondering if I can defend myself on my own in this case.

 

 

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I hope someone can still chime in, give an advice, share their experience or just help me to proof read my potential reply to the lawyer firm (in German) that I'd be eternally grateful for, but here's my plan for the next week. I'll try to describe my steps and outcome as much detailed as possible just in case it helps anyone in the future who may end up in the same nasty situation (or just enjoy reading this soap opera):

  • I'm going to write an objection letter ("Widerspruch", in German) and send it via E-Post (because why not). As far as I understand I don't need to use a registered mail yet ("Einschreiben Einwurf") since it's "just" to let lawyer firm know that I don't agree with the claim and have all the proofs to back my objection in case they decide to go to court and move on to "Mahnbescheid".
  • In the letter to the lawyer firm I want to:
    • stress that Clever Fit misinformed them since I paid for the mentioned period in June, long ago.
    • mention that I clarified their mistake multiple times using email that was mentioned in their official "Mahnung" letters indicating dates of these emails, maybe even attach one.
    • attach bank statement that clearly indicates date, amount and the the purpose ("Verwendungszweck") of the payment (I also have the paper receipts for all months I paid to them except Mai and April obviously)
    • attach official confirmation of contract termination ("Kündigung", last day is June 30th), implying that they couldn't just extend my contract to compensate for Mai and April when they were closed.
  • If I used this Risk calculator correctly then my risk if we go to the court and I lose the case (IANAL after all, who knows) would be somewhere between ~500-1000€ (I have the same case for my spouse, I'm not sure how that would work and whether we can join this into one case, 1000€ is just the worst case scenario if I bear doubled costs for both of us). As far as I understand if I win then they'll have to cover all the costs. Otherwise, yeah, 1000€ is quite bit, but just a thought that someone can come to you and lie that you owe them money infuriates me and I cannot tolerate that, that's more important than money. And I'm really curious how courts work in Germany, will be my first case for the past 7 years I live here.
  • As far as I managed to figure out, this case will be handled in the Local Court ("Amtsgericht", since amount is less than 5,000€) and technically I can represent myself in the court without a lawyer there. If I get a real court order ("Mahnbescheid") I'll likely involve a lawyer though, but 1000€ may be worth checking whether I can handle that on my own or not, let's see.

Would be great if anyone who sees any obvious flaws in my "strategy" correct me.

 

Thanks!

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Sehr geehrte Damen und Herren,

 

die Forderung Ihrer Mandantin ist unbegründet.

Wie Sie der beigefügten Kopie des Kontoauszugs vom ... entnehmen können, habe ich die angeforderte Zahlung bereits geleistet. Diese wurde in Abweichung von dem von mir angegeben Verwendungszeck für einen Zeitraum gebucht, für den ich keine Beiträge schuldete, da das Fitnessstudio geschlossen war.

 

Mit freundlichen Grüßen

 

Oxycom

 

 

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4 minutes ago, jeba said:

Sehr geehrte Damen und Herren,

 

die Forderung Ihrer Mandantin ist unbegründet.

Wie Sie der beigefügten Kopie des Kontoauszugs vom ... entnehmen können, habe ich die angeforderte Zahlung bereits geleistet. Diese wurde in Abweichung von dem von mir angegeben Verwendungszeck für einen Zeitraum gebucht, für den ich keine Beiträge schuldete, da das Fitnessstudio geschlossen war.

 

Mit freundlichen Grüßen

 

Oxycom

 

 

 

Awesome, thanks a lot @jeba!

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I'm in a similar situation now, though they have my bank info so I may have to close the account to stop them pulling any more unfounded payments.

 

Did you send the above response to the lawyer Oxycom, and did that settle things for you?

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2 hours ago, Tigre said:

I'm in a similar situation now, though they have my bank info so I may have to close the account to stop them pulling any more unfounded payments.

Why would you want to close your account ? Much easier to

- tell the gym in writing that any direct debt authorization is revoked with immediate effect

- tell your bank that any direct debit from this company should be revoked for the last xxx (up to the last six weeks). The bank has to revoke direct debits at your instruction, if this is within the time window stated above.

 

Note: A direct debit is not the same thing as a standing order to pay xxx every month. You cannot instruct your bank to withdraw such a standing order for the past (but you can stop it for the next payment).

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Outrage, etc! I wont waste time agreeing how stupid and annoying this all is - I wanted to concentrate on the payment you made through your bank.

 

The verwendungszweck you used when you sent the payment was a clear indication of your intentions.  I'm not sure that a company can just take any money you give them and decide themselves what it was for.  As far as I understand the law, you agree to pay for a specific service or product, that price is agreed upon and then the act of making payment and them accepting the payment creates a contract between you and the service/goods provider.  For instance if I offer to give you 100Money for you to polish all the forks in my cutlery drawer, and you would rather polish the knives, you would have to refuse the money and the work, you couldn't simply accept the money and then polish my knives for me, because you are not fulfilling the contract we agreed upon. Does that make sense?

 

So by them deciding that the money you paid was for something different than the time period indicated by their own Verwendungszweck they are basically polishing your knives, not the forks which was the agreed upon deal. Your forks are f**king flithy!

 

My Lawyer has advised me again and again to simply not reply to anyone that says they owe you money as your letters and Emails may end up working against you. Though I would hire a lawyer and not try to deal with it yourself because they will then take all of the appropriate actions on your behalf while you sit at home watching The Boys on Amazon or cooking your wife a delicious meal. The chances are that it wont get as far as a court case, they have a sort of "triage" where they check the claims and then check what you are saying and sort of marry it all up, if there is no case then they just say "nope" and it goes away, your lawyer would then claim back his expenses from said bastards.

 

These people have legal insurance so they just fire this shit out left right and center to see what sticks, they know most people will pay up because of the risk posed of losing more.  They are basically opportunist muggers and deserve nothing but our absolute contempt, I wouldn't piss on these bastards if they were on fire (mostly to avoid having my own piss-steam waft into my face).

 

I wish you all the best, and I hope that whoever is responsible for causing you this stress has a really shit christmas and gets the coffee gushes from food poisoning around 8pm on New Years Eve.

 

Peace!

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10 hours ago, DaringD said:

 I would hire a lawyer and not try to deal with it .... your lawyer would then claim back his expenses from said bastards.

I´m afraid it´s not so easy. They will only have to pay your lawyer if you had first sent them a demand with a reasonable deadline (say 2 weeks) which they failed to observe. I´d send it by registered paper mail and include something like "Bei erfolglosem Fristablauf werde ich ohne weitere Mahnung den Rechtsweg beschreiten".

Otherwise they could say "we didn´t know you really were that serious. Of course, we would have paid you had we known you were. There was no need to engage a lawyer and therefore, we won´t pay for him/her."

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On 24/12/2020, 13:29:06, jeba said:

I´m afraid it´s not so easy. They will only have to pay your lawyer if you had first sent them a demand with a reasonable deadline (say 2 weeks) which they failed to observe. I´d send it by registered paper mail and include something like "Bei erfolglosem Fristablauf werde ich ohne weitere Mahnung den Rechtsweg beschreiten".

Otherwise they could say "we didn´t know you really were that serious. Of course, we would have paid you had we known you were. There was no need to engage a lawyer and therefore, we won´t pay for him/her."

Then my advice is to warn as you said and then two weeks later hire a lawyer, job done. 

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Sincere thanks to everyone for the replies on my question. I'm just getting back to this now after the holidays :)

 

How does the below look to send by certified letter to cleverFit? I used DeepL to translate it (original English below).

 

--

 

Sehr geehrte Damen und Herren,

 

Ich bin am 17. November aus Deutschland ausgezogen und habe dies Ihrem Fitnessstudio am 26. November per E-Mail mitgeteilt. Weiterhin habe ich eine Kopie meines Flugtickets und die Abmeldung beigefügt.Diese Unterlagen und die E-Mail-Korrespondenz sind hier nochmals angehängt. Wie in Ihrem Vertrag steht, ist ein Wegzug ein Kündigungsgrund. Seitdem habe ich keine Antwort von Ihnen erhalten, und ich wurde wie üblich am 1. Dezember und 4. Januar abgerechnet.

 

Ich schreibe Ihnen, um Ihnen erneut mitzuteilen, dass meine Einzugsermächtigung mit sofortiger Wirkung widerrufen wird. 

 

Mit freundlichen Grüßen

 

--

 

I moved out of Germany on November 17 and informed you of this by email on November 26. I further included a copy of my plane ticket and de-registration. These documents and the email correspondence are attached here. As your contract states, moving away is grounds for termination. I have not received a response from you, and I was charged as usual on December 1 and January 4.

 

I write to inform you now that my direct debt authorization is revoked with immediate effect. 

 

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I´d write

" Ich bin am 17. November aus Deutschland weggezogen und habe dies Ihrem Fitnessstudio am 26. November per E-Mail mitgeteilt. Weiterhin habe ich Kopien meines Flugtickets und der Abmeldebestätigung beigefügt. Diese Unterlagen und die E-Mail-Korrespondenz sind hier nochmals angehängt. Seitdem habe ich keine Antwort von Ihnen erhalten, und von meinem Konto wurden am 1.12.2020 und am 4.1.2021 weiterhin Beiträge im Lastschriftverfahren eingezogen, obwohl laut Vertrag ein Wegzug einen Kündigungsgrund darstellt.

Die Ihnen erteilte Lastschriftermächtigung widerrufe ich hiermit."

 

In my view there are some open questions:

1. Did you actually terminate the contract and did you stick to the notice period or did you merely tell them you´re moving abroad (so that they could argue that´s not the same as giving notice of termination)?

2. Did you revoke the Lastschriftermächtigung before?

3. Why don´t you simply reverse the debit orders while you still can?

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Hi @jeba,

 

Thanks for your help on this.

 

To answer your questions:

 

1. Below are copies of the emails I sent them. They were in English as below. You could argue the first message is not a clear expression of my revoking the contract, though the second is more clear.

 

2. In the past week, I went into my bank account and for the December 1 charge selected "Lastschrift zuruckgeben." The money was promptly refunded by my bank.

 

When you ask if I revoked the Lastschriftermächtigung, I'm not sure what that is. Is that a separate step with my bank to deauthorize future direct debits from cleverFit?

 

3. I would be happy to simply handle this with my bank, if that's what you're suggesting above. However from reading other threads here (including this one) it seems they could come after me for breach of contract. If I send a certified letter and receive proof of delivery, then I have evidence they received my message in case they try to come after me legally.

 

Are you saying I'm overthinking it?

 

Personally, I think it is ridiculous that would be necessary. I'm from the USA, and only lived in Germany a year, so please forgiveness my ignorance. Most subscription-based businesses here let you cancel online or by email. If a business requires you to cancel over the phone that's increasingly considered outmoded and an imposition to the customer. Having to send a certified letter would be unthinkable!

 

Thanks again.

 

--

 

Nov 27, 2020
Hello,
I joined the gym in September after moving to Tubingen with my wife. Unfortunately, I had to
return to the US last week and will no longer be able to use my membership.
Please let me know how we can get my account cancelled.
Thank you,
[Tigre]

 

 

Nov 30, 2020

Hello,
I am just following up to my message from last week. I have attached my de-registration form as
well as a copy of my plane ticket as proof of the move.
I trust that we can avoid any charge for December as I have demonstrated I am no longer in
Germany.
Thank you,
[Tigre]
 

 

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I´m not a lawyer but my layman´s guess is that you´re fighting an uphill battle. That starts already with the language you used. I´m not sure whether termination of a contract in another language than German is legally valid (unless your contract is in English).

Whether termination can be done by email and without a handwritten signature depends on the smallprint of your contract (schriftlich? Schriftform? Textform?).

Revoking the Lastschriftermächtigung means stripping them of the authorization to charge your bank account via debit order. You don´t declare that towards your bank but towards the company in possession of such authorisation (again, whether an email is sufficient depends on your contract).

Even if using English as the language of communication should be legally effective you haven´t stated clearly as on when your termination should be valid and it´s unclear whether you observed any notice period. Just asking how you can terminate is not the same as actually terminating.

 

You may still be under contract (and owe them membership contributions) as we write since I think they may well have a case claiming that you haven´t terminated the contract in a legally effective way. I also don´t know whether moving abroad comes with not having to observe a termination period. Usually long-term contracts are cheaper than those you can cancel on short notice. The downside is that you´ll have to observe a notice period (if you can even terminate prematurely).

 

You might want to send them another email (asking for a read receipt) in German with a handsigned scan the original of

which you send by registered paper mail as well. Something like:

 

Sehr geehrte Damen und Herren,

 

bitte betrachten Sie meine email vom 27.11.2020 als Kündigung meines Vertrages mit Ihnen zm 30.11.2020. Für den Fall, dass dies nicht möglich sein sollte, kündige ich hiermit hilfsweise zum nächstmöglichen Zeitpunkt.

 

3 hours ago, Tigre said:

Having to send a certified letter would be unthinkable!

Legally, sending it as a registered letter isn´t necessary. That would merely be a cautionary measure to avoid them claiming that they haven't received it.

 

So far, they seem to be within their rights to charge you (provided that the 2 emails you copied above is all your communication on that matter) since you may still not have terminated your contract in a legally effective manner. If that´s the case revoking debit orders -while still possible- will only increase your liabilities by adding fees.

 

 

 

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Thank you @jeba.

 

Your points make sense. My original emails could have been more clear.

 

I will send the text you sent in the last message. My email provider does not support read receipts, unfortunately. What do you think about adding the following statement (translated into German):

 

If I do not receive a response from you within 5 business days, I will consider this cancellation request as received and the cancellation of my contract to be valid as of the date originally requested, November 30, 2020.

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I have my doubts whether you´re within your rights to demand termination effective 30 Nov.. Therefore, I´d recommend adding that you terminate in the alternative ("hilfsweise") at the next possible point of time. Also, a deadline of 5 business days may be too short. I remember court rulings which deemed 7 days (not business days) sufficient but also others which demanded 14 days. I doubt anyway though whether such deadline for a response would make a difference as what the law stipulates is relevant - not what you consider valid. But it will probably not do any harm either.

 

I think your best chance is claiming that by your moving out of Germany the basis for your contractual relationship has fallen away and that therefore you cannot reasonably expected to stick to it. I remember a court ruling which applied similiar logic to a a case in which a student had rented an apartment but wasn´t accepted by the university of that town so he could terminate prematurely. I don´t remember whether he had to observe a notice period though and I also don´t know there higher courts applied that logic as well.

 

Sorry, but there are too many unknowns (such as e. g. contractual notice period?, did you get a discount in exchange for a fixed time contract?) and imponderabilities to guesstimate the outcome.

 

You might want to give them a call to find out their take on it. Will they claim haven´t even terminated the contract? Will they accept emails? What would seen acceptable to them?

 

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Thanks again @jeba. Your message makes sense. Unfortunately I cannot speak to someone there as they don't appear to have anyone answering their phones.

 

Whenever I have tried calling their Tubingen office, I get disconnected after many rings without an option to leave a message.

 

Their website legal page gives contact information for their main office in Landsberg am Lech. When I call that number, there is also no option to speak to a human being. It either directs you to contact your local studio, or if you choose option 2 to speak to someone about another issue, it asks you to send an email.

 

I will send an email to their main address clearly stating the end of my contract. That is the best I can do, short of sending a certified letter to their headquarters.

 

How about this as a final message to send to the main office (info@clever-fit.com) and CC'd to the Tubingen office I've been in contact with? Do you think I should include the fact that I tried calling but had no option to speak to a person?

 

Sehr geehrte Damen und Herren,

 

bitte betrachten Sie meine email vom 27.11.2020 als Kündigung meines Vertrages mit Ihnen zm 30.11.2020. Für den Fall, dass dies nicht möglich sein sollte, kündige ich hiermit hilfsweise zum nächstmöglichen Zeitpunkt.

 

Wenn ich bis zum Ende dieses Monats keine Antwort erhalte, betrachte ich diese Kündigung als zugegangen und die Vertragskündigung als akzeptiert, und alle weiteren Gebühren im Februar oder darüber hinaus als ungerechtfertigt.

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5 hours ago, Tigre said:

Sehr geehrte Damen und Herren,

 

bitte betrachten Sie meine email vom 27.11.2020 als Kündigung meines Vertrages mit Ihnen zum 30.11.2020. Für den Fall, dass dies nicht möglich sein sollte, kündige ich hiermit hilfsweise zum nächstmöglichen Zeitpunkt.

I´d write the above only without the last paragraph as it is legally irrelevant and since you don´t know when the "nächstmöglicher Zeitpunkt" will be. I´d also send it via fax and via registered letter to be on the safe side.

 

5 hours ago, Tigre said:

Do you think I should include the fact that I tried calling but had no option to speak to a person?

It doesn´t hurt but will probably not make a difference legally.

 

 

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