Discover Aquatics

Ms*** enrolled her child in monthly swim lessons on February 17, 2015.Lessons were to start on February 24, At the time of registrations it wasexplained to Ms*** that Discover Aquatics is not a session based swim school butthat lessons are monthlyIt was both verbally and
contractually communicated to Ms.*** that her child's lessons would continue until she gave written notice of herintent to withdraw from her child's lessonsA copy of her signed contract is attached.Ms*** failed to give verbal or written notice of her intent to end lessonsAs aresult an enrollment was held in class for her child in the month of May 2015.A number of attempts were made to contact Ms*** by phone for May tuition.Messages were left, however, Ms*** declined to call and talk to our officeregarding her accountAs a result, Ms***'s child was removed from class for nonpayment in MayThis resulted in a charge for May swim lessons as well as a late feebeing accessed on her account per the signed contact.Whether Ms*** choose to bring her child to class or not is up to Ms***AnEnrollment was created for her child preventing any other child from being placed inthat specific class.Attempts were made by phone and letter to contact Ms*** to resolve heraccountThis included sending a monthly invoice and copy of her signed contractIt wasalso made clear to Ms*** that a late fee would occur on her account until it waspaid in full or payment arrangements were made
On August 8, we made phone contact with Ms***, at that time she statedthat she should not have to withdraw, that she should just be able to not pay and thatshould be her withdrawalWe attempted to explain the withdrawal policy that shesignedShe stated that she should not be expected to remember what she signed.Discover Aquatics continued to send a monthly invoice which included a monthly late fee.Several times it was offered to Ms*** to pay the principle of $and wewould waive all late feesMs*** declined.On December 15, a letter was sent to Ms*** offering to waive all late feesif she made payment on the principle amount due of $(see attached letter).A week later a letter was received dated December 15, from Mr***Ms*** had her attorney draft and send Discover Aquatics a letter (see attached).When we received the letter from Mr***, we responded immediately (see attachedresponse)After not hearing from Mr*** I contacted him by phone on January 14,At that time Mr*** indicated that he had received the letter and copy of Ms.***'s signed contractMr*** stated that he had advised his client to pay heraccount and told us to contact her directly for payment.I spoke with Ms*** directly after speaking with Mr*** on January 14, 2016.I attempted to again explain that a class was held for her child due to her neglect towithdraw when she made the decision to stop attending lessonsI further explainedthat a class was held for her child during the months of March and April whether sheattended or notMs*** did not make any attempts to contact us about classesshe failed to attend nor did she convery any issue with the facility or the class it self.At no time did Ms*** contact our staff regarding her claims that her child wasupset or that there was too much noise, it was overcrowded or chaoticMs***does not dispute that she signed the contract or that she was told about the withdrawalpolicy verbally, instead Ms*** seeks to interpret the contract to self waive ourwithdrawal policyIn fact, these claims were never expressed during any conversationwith Ms*** nor were they expressed by her attoney in the letter datedDecember 15,
Ms*** attempts to interpret the below policy to explain her failure to withdrawher child but fails to apply the "additional fees":"Tuition is due by No Later than the p+ lesson day of the new monthFailure to pay bythis day will result in removal from class, loss of scheduled lesson time and additionalfees".Please see the attached signed and dated contractYou will notice that Ms***acknowledges each policy with her initials.We have made a number of attempts to work with Ms *** to resolve her account.Discover Aquatics Swim School*** *** *** ** *** ***Olympia, WA 98502360-867-9283www .discoveraquaticscom
***please see attached***

Complaint: [redacted]I am rejecting this response because:
I will go through their statements which I have highlighted in red font and address the comments in order (my response in black font).
At the time of registrations it was explained to Ms. [redacted] that Discover Aquatics is not a session based swim school but that lessons are monthly. It was both verbally and contractually communicated to Ms.[redacted] that her child's lessons would continue until she gave written notice of her intent to withdraw from her child's lessons. A copy of her signed contract is attached. Ms. [redacted] failed to give verbal or written notice of her intent to end lessons.
Many things were explained to me at the time I enrolled.  This was done through a window in a very small lobby of Discover Aquatics (DA) where there were many other people entering and exiting, I was also hanging on to a 5 year old child.  I challenge you to read a technical document and remember every sentence in that document and every sentence said to you by someone through a small window in a busy lobby 3 weeks later.  
That said, in reading the signature page later, my understanding was that my child would be dropped from the class if I did not show my intent to continue the classes by paying for the next session. 
 
The word session is a technicality, I could also say that DA operates on the basis of sessions that are of one month duration.
I knew that I paid for 2 and a half months and that the amount I paid was not refundable.  My understanding was that classes are to be pre-paid.  When I stopped taking my child to the classes I understood that I would be forfeiting the money I paid for classes not taken, but since the classes are to be pre-paid, how can you owe for classes you do not pay for, since “pre-paid” means you pay before you are enrolled.  
…an enrollment was held in class for her child in the month of May 2015.
My child did not attend any classes that we paid for in the entire month of April.  As I said before, I stopped taking my child to DA when it became clear to me that the noise and crowded conditions were not the best situation for us and we found a much better solution to teach her to swim.  As I said before, I did not ask for my money back for classes that I already paid for, as well as the hefty initiation fee which would mitigate any risk DA has for losing short-termers. It is disingenuous for DA to say that they understood my intent to be to re-enroll for an additional month-long session, given that we did not attend any classes for the entire month of April. And her classes only had 3 students, making it hard to believe her absence was not noticed. 
A number of attempts were made to contact Ms. [redacted] by phone for May tuition.Messages were left, however, Ms. [redacted] declined to call and talk to our officeregarding her account.
This statement is not true in fact I contacted DA when I received the first bill in the mail.  Later calls that DA made to me, some I was able to answer and some I had to leave to voice mail because I was working.  After several conversations with the owner and other employees who called me monthly to tell me that I owed them money, I soon realized that I could not reach any agreement with them, we had a difference of opinion and it would not matter how much more we discussed it, we would never reach agreement.  Nevertheless, I did talk to them on several occasions. For them to say I declined to talk to their office regarding the “account” is a misrepresentation of the facts.  And how can they even say I have an “account” when they do not accept payment on account, according to their contract, payment is due before services are given, you cannot have an “account”. It’s all payment up front.
Ms. [redacted]'s child was removed from class for non-payment in May. This resulted in a charge for May swim lessons as well as a late fee being accessed on her account per the signed contact.
Yes my child was removed from class for non-payment in May, that is what I understood would happen, if you don’t pay, you are removed from the class, we didn’t want to take the class anymore.  And yet DA charged me for something we were removed from. 
Enrollment was created for her child preventing any other child from being placed inthat specific class.
First of all on the first day of May my child was dropped from the class.  For the months of March and April the spot was not filled but it was paid for by me. 
Attempts were made by phone and letter to contact Ms. [redacted] to resolve heraccount. This included sending a monthly invoice and copy of her signed contract. It wasalso made clear to Ms. [redacted] that a late fee would occur on her account until it waspaid in full or payment arrangements were made.
Item one in the contract under “pool policies” reads:
Registration for swim lessons is confirmed with payment.  A full credit will be applied if cancellation is done 1 week prior to the start date. 
Further down the contract it states:
We require a 7-day written notice 7 days in advance of your desired end date. 
Which matches the statement above (cancellation can be done 1 week prior to start date.)  I took that to mean that if you want to withdraw for classes you already paid for in advance you need to notify 7 days before the session (of one month duration) starts.   I knew that I was not registered for May because I did not make payment for May.  According to the contract: Registration is confirmed with payment. 
The contract I signed does not state anywhere that if I do not withdraw by 7 days before the first of the month I will be re-enrolled for classes I do not intend to enroll in.  Neither does it say that I will be charged the full rate for classes my child is dropped from.  It also does not say anywhere in the contract that $10 a month will accrue in perpetuity until the late fees far exceed the amount disputed. 
On August 8, 2015 we made phone contact with Ms. [redacted], at that time she statedthat she should not have to withdraw, that she should just be able to not pay and thatshould be her withdrawal. We attempted to explain the withdrawal policy that shesigned. She stated that she should not be expected to remember what she signed.Discover Aquatics continued to send a monthly invoice which included a monthly late fee.Several times it was offered to Ms. [redacted] to pay the principle of $65.00 and wewould waive all late fees. Ms. [redacted] declined.
Stating and rehashing statements I may or may not have made on the phone seems pointless.  I obviously would not know for sure what I said, not having recorded or taken notes of these conversations, not thinking that anything unreasonable would be demanded later.  Most of the calls they made to me occurred while I was at work and working.  No one is in a position upon being called unexpectedly while working to make statements that should be quoted later as legal documents.  It is true, when I read a legal document I do not remember every clause in it several months later.  I don’t think anyone does.  However I did not intend to re-enroll my daughter in classes that we did not want and did not attend and I did not give DA any cause to believe I did intend to re-enroll given that I did not attend most of the classes I paid for in advance.  I also understood that if I did not pay by the 1st of the month my daughter would be dropped from the class. 
Yes I declined their offer to just pay $65.00. I already paid over $200 for 4 swim lessons.  I cannot afford to just throw away another $65.00, and I will not support that a business should profit from deceptive practices.  And I do not believe it is reasonable to bill me for classes I did not register for.  (From the contract: Registration is confirmed with payment.)
On December 15, 2015 a letter was sent to Ms. [redacted] offering to waive all late feesif she made payment on the principle amount due of $65.00 (see attached letter).A week later a letter was received dated December 15, 2015 from Mr. [redacted]. Ms[redacted] had her attorney draft and send Discover Aquatics a letter (see attached).When we received the letter from Mr. [redacted], we responded immediately (see attachedresponse). After not hearing from Mr. [redacted] I contacted him by phone on January 14,2016. At that time Mr. [redacted] indicated that he had received the letter and copy of Ms.[redacted]'s signed contract. Mr. [redacted] stated that he had advised his client to pay heraccount and told us to contact her directly for payment.
Obviously it was not logical for me to hire a lawyer to help me in this situation since the amount of money in question is far less than legal fees that would be charged by a lawyer. I attempted to get legal advice from my employer’s Employee Assistance Program which provides limited legal advice free of charge but this really ended up being a mistake since the lawyer who I was referred to was not able to make enough money from this service to make it worth his while to even pay attention and get his facts straight or offer any good advice or solution for me.  His advice to me to just “pay the bill” reflects that.  If an amount disputed is too small to make it worthwhile for a lawyer to make money helping you, does that mean that you should just take a loss and pay it?    $86 dollars might not be significant for you, or for a lawyer or for a company doing business, but for a single family, that amount is significant. For Mr [redacted] to tell DA that he advised me to pay the bill seems to be a great failure to represent my best interests.  He clearly was not “my lawyer” since I did not retain him and I did not pay him although he was paid on my behalf by my employer’s Employee Assistance Program to give me legal advice. 
I spoke with Ms. [redacted] directly after speaking with Mr. [redacted] on January 14, 2016.I attempted to again explain that a class was held for her child due to her neglect towithdraw when she made the decision to stop attending lessons. I further explainedthat a class was held for her child during the months of March and April whether sheattended or not. Ms. [redacted] did not make any attempts to contact us about classesshe failed to attend nor did she convery any issue with the facility or the class it self. At no time did Ms. [redacted] contact our staff regarding her claims that her child was upset or that there was too much noise, it was overcrowded or chaotic.
Of course a spot was held for my child during March and April since I paid for those months in addition to a significant “initiation fee”. 
I did not bring up the issues I had with the facility and the class itself because I didn’t feel it was relevant.  Those issues did not prevent me from enrolling, I had the opportunity to check out the facility before enrolling and was aware of the issues before making the decision to enroll. I did feel that the class itself was overpriced for what you receive, just a few minutes of the teacher swirling the child around the water in a very limited amount of space since there were several classes going on simultaneously at different areas of the pool, most of the 25 minutes was spent just hanging on the side while she swirled the other class members around in the water, also blowing bubble and dunking faces while wearing goggles. (I later taught my child to swim without wearing goggles which makes her better able to dunk her face in the water and be comfortable in the water without goggles, but I’m not arguing that DA instruction techniques are not good; they were not good for us though they might be good for someone else). The facility is loud and crowded, there is no place for parents to sit.  The dressing area is dirty.  Like I said before, those issues were not significant to me nor did they prevent me from enrolling.  The issue that made me withdraw my child was her behavior, her emotional distress upon approaching the parking lot and the building.  That obviously was not your fault so obviously I did not have any reason to tell DA about it or seek any remedy from DA, nor did I expect DA to refund the money I already pre-paid. 
Ms. [redacted] does not dispute that she signed the contract or that she was told about the withdrawalpolicy verbally, instead Ms. [redacted] seeks to interpret the contract to self waive our withdrawal policy. In fact, these claims were never expressed during any conversation with Ms. [redacted] nor were they expressed by her attoney in the letter dated December 15, 2015.
I’m not sure what self waive means or whether or not that is what I did.  Obviously I am not a lawyer so I am doing my best to interpret the contract and learn about business practices and whether or not they are viewed as ethical or fair by looking at other similar cases.  Even if this practice of auto-enrolling people for a product or service is technically allowed under Washington law, it seems to be misleading, unfair and unethical. 
In fact, these claims were never expressed during any conversation with Ms. [redacted]
That I didn’t express a claim during a phone conversation is irrelevant.  All conversations I have had with DA have taken place when they call me while I am at work.  I do my best to answer and speak to the best of my ability while unprepared and distracted but my statements made on the phone do not represent the sum total of my rights or my intentions or opinions.  And again I will repeat, anything said by Mr [redacted] is not relevant, he is not my attorney, I did not retain him, I did not pay him, he did not represent my best interests.  I only sought his advice without knowing anything about him or what he was going to say or write on my behalf. I did not see, read or approve the letter he wrote dated December 12, 2015 before he sent it off, and when I did receive it at the same time that DA did, I found it to contain inaccurate statements and his later statements that DA says he made to them were not approved by me nor did they represent my best interests.
Ms. [redacted] attempts to interpret the below policy to explain her failure to withdrawher child but fails to apply the "additional fees":"Tuition is due by No Later than the 1st lesson day of the new month. Failure to pay bythis day will result in removal from class, loss of scheduled lesson time and additionalfees".
It says “additional fees” without any definition of how much, what kind of fees.  And is it legal, ethical or fair to charge someone fees for not buying something?  In fact the fees were actually the monthly charge for lessons I did not sign up for.  DA says I had lost my scheduled lesson time, so why am I being charged for lesson from which my daughter had been removed.
Please see the attached signed and dated contract. You will notice that Ms. [redacted]acknowledges each policy with her initials.
See the statements above, while I did sign the contract, it was signed while standing in a busy small lobby filled with people and with my 5 year old hanging on me.  I did not imagine it would be likely that a business would operate unfairly. I did not negotiate the terms of the contract.  The contract in my opinion seemed to indicate that my child would be dropped from the class if I did not pay and that registration is confirmed with payment.  So while I did sign it, I disagree with DA that it is fair and ethical for them to charge customers for services they do not intend to sign up for.
In the limited (and perhaps uninformed) research I am able to do (I am not a lawyer, I am doing my best to defend my interests) it appears that many people, and many states feel that these types of contracts even though they may technically be legal are misleading and unethical.  And in fact in many states (not Washington) they are illegal or unenforceable. 
In some of the articles I have read, similar practices (i.e. charging someone for something because they don’t say they don’t want it) are called “auto-renew” and are viewed by some to be ethically shaky and are limited by some state’s laws.
New York and other states limit auto-renew.  http://www.natlawreview.com/article/contract-auto-renewals-not-necessarily-so-au...⇄ /> Other states that have laws that limit auto-renew practices include: Connecticut, Oregon, Illinois, Georgia and Florida.
In some articles I have read these types of policies are called “negative option deals” and although there isn’t a lot of enforcement by the government law enforcement agencies, these practices are clearly seen as being deceptive. 
The Federal Trade commission is responsible for enforcement of the Restore Online Shopper's Confidence Act (ROSCA).  While this seems to apply mainly to online purchase, it is analogous in that it addresses online transactions where the customer is rebilled or re-charged for services or goods automatically without the customer’s intent, as was done by DA in my situation.  The FTC is requiring from the seller (of the goods or services):  “obtaining the customer’s express consent before making the charge”). 
From: http://www.law360.com/articles/687618/2nd-wave-of-auto-renewal-lawsuits-attack-b...⇄ :
Congress' enactment of the Restore Online Shoppers’ Confidence Act provides the FTC and state attorneys general with an additional basis for targeting companies’ renewal policies. ROSCA generally prohibits charging online consumers for goods or services through a “negative option feature” to an agreement, whereby the customer’s silence or failure to cancel the agreement is treated as acceptance of the offer. In other words, ROSCA requires companies to obtain consent from customers before signing them up for a free trial that automatically turns into a paid subscription. A seller may only avoid this requirement by clearly and conspicuously disclosing the material terms of the agreement before obtaining the customer’s billing information, obtaining the customer’s express consent before making the charge, and providing a simple way to stop the recurring charges. Even though ROSCA took effect in 2011, the FTC did not bring its first action under the law until October 2014. The FTC has brought ROSCA claims against at least three businesses since then, including DirecTV, which indicates the commission’s increased interest in enforcing this law. DirecTV also asserted 11 affirmative defenses, including failure to state a claim, equitable doctrines and lack of jurisdiction and standing. The FTC filed a motion to strike some of these defenses in early June 2015, and DirecTV filed a reply on June 22, 2015. On July 1, the court issued a scheduling order, calling for the FTC to file an amended complaint by Aug. 1, 2015.
The FTC enforces the ROSCA and although I’m not sure it applies here because it deals with online transactions, the spirit of the law clearly is meant to prevent what has happened here, to prevent a business from defrauding consumers by charging them for services they do not want unless they take action to cancel the service.  And I bring it up here as an example of how this type of business practice is viewed as unfair and attempts being made to reform.
In some of the articles I read while doing my research, similar practices are called “evergreening”. 
Many companies, for example ATT, view evergreening as unethical and a bad business practice.
Many states have acted to limit the enforceability of evergreen clauses in contracts.  For example, Illinois, New York and Wisconsin have passed legislation that affects the enforceability of evergreen clauses in certain scenarios, by creating disclosure and notice of renewal requirements, for example before re-enrolling someone in a class they would have to send notification.
See more at: http://www.unionleader.com/article/20120806/NEWS02/708069988&template=mobile...⇄ /> Since DA is similar to a health or exersize club although maybe not technically a health club, I attempted to find more examples of a consensus of the ethics of evergreening or auto-renewal clauses in the health club industry.  Several states have addressed this:
The state of CT has limited auto-renewal clauses by requiring companies to notify customers before re-enrolling them, and re-enrollment does not occur until the customer pays the renewal price.
In New Hampshire, health clubs cannot have an automatic renewal clause in pre-paid membership contracts. Renewal only happens upon payment of the renewal price. (http://doj.nh.gov/consumer/sourcebook/health-clubs.htm)
Many other states have similar limitations on the legality of auto-renewing for health clubs: 
From: http://download.ihrsa.org/publicpolicy/automaticrenewalrestrictions.pdf
In Iowa automatic renewal clauses are not allowed.
In Massachusetts the consumer must affirm the intent to renew.
In Nevada auto renew contracts are not allowed.
In NY auto renew contracts are prohibited, the business that is doing the auto-renew must notify the consumer that the auto-renew is happening and get express consent.
In PA, the consumer must affirm intent to renew at the expiration of each contract term.
In RI, consumer must affirm intent to renew.
In TN consumer must affirm intent to renew at the end of the term.
Here’s another article on the industry consensus on the unfairness of auto-renew clauses:
http://raycomgroup.worldnow.com/story/23291640/watch-automatic-renewal-clauses-o...⇄ /> Common Law Contract provisions:
Automatic renewal clauses are parts of contracts and common law contract provisions will apply to contracts.  According to common law contract provisions, if a contract is unconscionable or the seller isn’t acting in good faith, the automatic renewal clause, or the contract as a whole, may also be void or unenforceable.
Not being a lawyer, I wasn’t exactly sure what those terms mean legally so I looked them up:
From:  http://legal-dictionary.thefreedictionary.com/unconscionable
Unconscionable: In contract law an unconscionable contract is one that is unjust or extremely one-sided in favor of the person who has the superior bargaining power. An unconscionable contract is one that no person who is mentally competent would enter into and that no fair and honest person would accept. Courts find that unconscionable contracts usually result from the exploitation of consumers who are often poorly educated, impoverished, and unable to find the best price available in the competitive marketplace.
I’m not sure if this applies to our situation.  While our transaction was one-sided in favor of DA, because they presented me with a contract which I had to either accept or go without teaching my daughter to swim and I was tired and hanging onto a 5 year old
while signing the contract and did not feel I had any bargaining power to alter the terms of the contract to be more evenly fair to me.  I might not be poorly educated or impoverished (maybe mentally competent) but I was definitely not savvy to the market place and unable to find the best price available for teaching my child to swim, which was a highly needed priority for me.  But overall this might not apply. 
However upon looking up the definition of good faith in legal contexts, it seems to be more relevant:
good faith
n. honest intent to act without taking an unfair advantage over another person or to fulfill a promise to act, even when some legal technicality is not fulfilled. The term is applied to all kinds of transactions.
It seems to me that this term would fit.  In my opinion these actions taken by DA showed a lack of good faith.  We were charged for lessons we did not sign up for, did not intend to sign up for after not attending the lessons we did sign up for and pay for.  This was done in pursuit of a legal technicality, i.e. we didn’t say we didn’t want to re-enroll for the lessons by their set deadline. 
Finally, this is my final thought on this matter.  Why would a business operate in this way i.e. automatically billing people for classes they did not enroll in, and requiring a negative notification instead of a positive notification.  I do not understand how this would be a better way to do business, it seems very prone to misunderstanding and erroneous billing of charges not intended.  And if they do this as a convenience for the customer then why not just automatically bill the credit card given at registration?  That would make it more clear to the customer, i.e. if the business has my credit card they will be billing directly.  But if they billed the credit card automatically then it is much easier for the customer to be protected by their credit card company and have the charges reversed, as I have learned from the research I have done on this issue.  That is the remedy that other consumers have taken when auto-billed for goods or services they did not intend to buy.
The only reason I can think of why they would want to operate this way is that then they can bill the customer for lessons not given when the customer forgets to “opt out” since after all we are not accustomed to giving negative notification for anything in this world.  We are not required to go to the gas station and say, I do not want to buy gas today.  At the grocery store we do not have to say I do not want to get hotdogs today. We do not log on to Amazon and say I do not want to buy books today.  Of course there are many companies who do conduct business that way as I have mentioned previously, and many of those have been discredited as having unfair misleading practices and many are being fought in courts or in the courts of public comment.  I believe that perhaps DA finds this practice profitable because after all the amount in question is not that much, ($86) and it is much easier to just pay it and kick yourself for not remembering to cancel than to mount a fight and contest these unintended charges.
How much profit does this company receive from many $86 payments from former clients who forgot to give notice because maybe they signed the contract a long time ago and didn’t remember every statement on it, or maybe like me they are a stressed and busy mom and had a young child hanging on them when they signed the contract and so every sentence in the contract did not stick in their head, and so they chose not to fight the charge because it is not worth fighting for that small amount, and not worth damaging your credit for that small amount... ?
 
 
 
Sincerely,[redacted]