(dissenting).
[¶ 24.] I respectfully dissent. I would reverse the trial court’s findings as clearly erroneous. Moreover, the trial court committed significant errors of law. I would reverse and remand for a trial on the merits of the breach of contract and foreclosure claims.
[¶ 25.] When Donovan purportedly assigned his rights to Powell, Brown had three options: (1) she could attempt to void the assignment; (2) she could recognize the assignment, but retain her rights against Donovan for the breach of contract; or (3) she could accept the assignment and waive her rights against Donovan. See Garden State Buildings, L.P., v. First Fidelity Bank, N.A., 305 N.J.Super. 510, 702 A.2d 1315, 1322 (1997). Brown *335claims she chose to void the assignment, as evidenced by her refusal to accept payments from Powell once Brown was aware of the purported assignment. The trial court, however, skipped both options one and two in favor of option three. The court also impermissibly applied ratification analysis in place of true waiver analysis. This improper application of law mandates reversal.
[¶ 26.] “A contractual right can be assigned unless ... assignment is validly precluded by contract.” Restatement (Second) Contracts § 317(2)(c) (1981). An anti-assignment clause protects the seller by ensuring her the opportunity to choose with whom she contracts and by providing security of performance. See Wandler, 1997 SD 98 at ¶ 37, 567 N.W.2d at 384-85. Yet, a valid assignment may still be achieved when the seller elects, by some affirmative action or intentional conduct, not to exercise her power to void the assignment. See Corbin on Contracts § 873 (1951). This action or conduct may ratify the assignment without waiving the seller’s rights against the assignor.
[¶ 27.] Waiver of a valid anti-assignment provision, under South Dakota law, may only be accomplished by the intentional relinquishment of a known right. Subsurfco, Inc. v. B-Y Water Dist., 337 N.W.2d 448, 456 (S.D.1983).
The doctrine of waiver is applicable where one in possession of any right, whether conferred by law or by contract, and with full knowledge of the material facts, does or forbears the doing of something inconsistent with the exercise of the right. To support the defense of waiver, there must be a showing of a clear, unequivocal and decisive act or acts showing an intention to relinquish the existing right.
Brim v. S.D. Bd. of Pardons and Paroles, 1997 SD 48, ¶ 48, 563 N.W.2d 812, 823 (emphasis in original) (quoting Norwest Bank v. Venners, 440 N.W.2d 774, 775 (S.D.1989)). Therefore, an anti-assignment clause may be waived by a written instrument, a course of dealing, or even the failure to invalidate the assignment, so long as the action is voluntary and unequivocal. See Wandler, 1997 SD 98 at ¶ 38, 567 N.W.2d at 385 (holding defendant’s repeated acquiescence to previous nonconsensual assignments, and his continued acceptance of payments from the assignee after he was aware of the assignment, evidenced “the nonassignment provision was generally not enforced”).
[¶28.] The contract for deed in this case clearly contained a valid anti-assignment provision, of which Powell admits she was aware. Despite her knowledge of the anti-assignment provision, Powell never provided the 82-year-old invalid Brown with notice of the assignment. While Powell claimed she attempted to contact Brown once, there is no evidence beside her own testimony to support this assertion. Powell was forced to concede that she never secured a valid waiver of that provision. Thus, we are left to determine whether a judicial mind, in view of the law and the circumstances, could have reasonably concluded that Brown’s conduct amounted to a voluntary, knowing and intelligent waiver of her rights against Donovan.
[¶ 29.] There is no evidence in the record to support a finding that Brown knowingly accepted payments from Powell as an assignee. There was no actual notice because Powell did not file a notice of interest in the property until December 13, 1999. This was nearly eleven months after Powell had taken the quitclaim deed from Donovan and long after Powell began making monthly installments. There was no constructive notice because Powell did not record the purchase agreement or quit*336claim deed until December 29, 1999. See SDCL 43-28-14 (providing unrecorded instrument is only valid with respect to those who have notice of it).
[¶ 30.] Brown was aware that Powell was Donovan’s attorney and believed, as evidenced by the absence of Powell’s name on Brown’s first set of foreclosure pleadings, that Powell was making payments only in her capacity as Donovan’s attorney. Powell encouraged this notion by making the payments from her business account, thereby fostering the idea that the payments were related to her law practice and not her personal finances. Annotations on Powell’s checks even perpetuated Brown’s misconception, as they were entitled “Donovan contract” and “March Donovan Apts.” The trial court’s distinction that the installments were not made from a trust account is inapposite when dealing with non-lawyers. Care must be taken by all attorneys to assure that their personal funds do not intermingle with the funds and property interests of a client, especially when it causes confusion (intended or otherwise) to third parties regarding the actual state of affairs. See Matter of Discipline of Tidball, 503 N.W.2d 850, 854 (S.D.1993).
[¶ 31.] This Court’s recognition of Powell’s payment of'debts and utilities as illustrative of Powell’s “open and notorious possession” is unpersuasive. The majority of these payments were not made until after the foreclosure action had been filed.1 As mentioned above, no notice of the assignment was given to Brown and no purchase agreement or deed was filed. The insurance documents presented to Brown still contained Donovan’s name as the insured. Powell’s efforts to bring the property taxes and insurance up to date just before trial were simply too little, too late.
[¶ 32.] The Court’s invocation of equity in this case is also misplaced.2 Powell comes before this Court with unclean hands; she comes with the full knowledge of an attorney as to notice and the effects of South Dakota’s recording statutes. One *337who knowingly chooses not to file notice of a sale should not be allowed to benefit from that lack of notice, by claiming the other party’s ignorance constituted a waiver of her rights.3 Such surreptitious behavior is not favored by the law when exhibited by a layperson, much less an attorney. See South Dakota Rules of Professional Conduct 4.3 (stating “[w]hen a lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.”). Although Brown could have been easily notified, evidence of such notification is nonexistent.
[¶ 33.] Moreover, the property was sold by Brown to Donovan at less than fair market value to supplement his wages as her employee. It was also an incentive for him to remain in her employment. What equity is it to enforce that discount against a trusting 82-year-old invalid widow and grant it to an attorney whom Brown never hired or even knew?
[¶ 34.] Finally, Powell raises several issues that are not relevant to this foreclosure action. For example, the argument that this lawsuit was spawned from bad feelings over Donovan’s acquittal is completely irrelevant to whether a valid waiver exists in this case. Likewise, the evidence of Brown’s previous acceptance of late payments from Donovan is also irrelevant. The pre-assignment acceptance of late payments is only germane to a determination of whether foreclosure against Donovan is justified for non-payment or late payment. Brown has amended her foreclosure action, however, and it is now based upon Donovan’s breach of contract in assigning his rights to Powell without Brown’s approval. Thus, the trial court’s consideration of these facts in the context of deciding whether a valid waiver exists was clearly erroneous.
[¶ 35.] It would have been a simple matter for a law-trained person to send a one-paragraph notice of assignment to the contract vendor. It would have been a simple matter for a law-trained person to file the assignment of the contract for deed with the local register of deeds. It would have been a simple matter for a law-trained person to be candid with the court and initially raise her property interest in an answer when the property was facing foreclosure. Yet, none of this occurred. Equity should not be invoked to effectively nullify a nonassignment clause demanded by an 82-year-old woman for her protection. Instead of acknowledging the con*338tracting parties’ intent, this Court s opinion only rewards the less than forthright behavior of a member of the bar who presumably knew how and when to cross the “t’s” and dot the “i’s.”
[¶ 36.] For the above reasons, I would reverse and remand for further proceedings on the breach of contract and foreclosure action.
[¶ 37.] GORS, Acting Justice, joins this dissent.
. The Court places great factual reliance upon its view that Brown’s son "has long held a power of attorney to manage her affairs” and was well aware of Powell’s interest in the property. This is error. Brown's son testified he did not obtain a power of attorney from his mother until "after this foreclosure action was commenced.” Thus what Brown's son knew or did not know as to the status of the property prior to the foreclosure action is irrelevant.
Beyond that, Brown’s son testified he knew nothing of Powell's purported interest in the property:
Q: Did Joan Powell inform you somehow that she purchased the properly?
A: No.
Q: Has she ever in fact just written or called you and told you that she’d purchased the property?
A: No.
Q: Would you have found out about that essentially about the time the foreclosure, just before the foreclosure action was commenced?
A: Yes.
Q: So the date of the foreclosure action would be about the time you would have found out?
A: That's correct.
Q: Have either you or your mother ever consented to a transfer of the property or a waiver of what's called the due-on-sale clause in the contract?
A: Absolutely not.
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Q: And were you aware in any way that she was tendering those checks to you as a purchaser of the property herself?
A: Absolutely not.
. While this Court states that foreclosure is considered to be an equitable remedy, it is notable that the basis for prevailing in a foreclosure is clearly set forth by statute. A violation of the terms of the contract is a breach of contract constituting default. SDCL 21-50-1 provides that a remedy for default on a contract for deed is strict foreclosure. See Wandler, 1997 SD 98 at ¶ 20, 567 N.W.2d at 382.
. Indeed, Powell's lack of disclosure went even further. On November 12, 1999, Brown filed a complaint for foreclosure of the contract for deed against Donovan based on his failure to timely make the required contractual payments, failure to properly insure the property, and failure to pay the property taxes. On December 9, 1999, Powell, acting as Jim Donovan’s attorney, filed an answer on his behalf. But she made no mention of her claimed ownership of the property or interest therein. "Clearly, the requirement of candor towards the tribunal goes beyond simply telling a portion of the truth. It requires every attorney to be fully honest and forthright. Therefore, candor and fairness should characterize the conduct of an attorney at the beginning, during and at the close of litigation.'" In re Discipline of Wilka, 2001 SD 148 ¶ 15, 638 N.W.2d 245, 249 (citations omitted). “Attorneys have a responsibility to present the record with accuracy and candor.” Matter of Discipline of Dorothy, 2000 SD 23, ¶ 51, 605 N.W.2d 493, 509 (citing Pinkham v. Sara Lee Corp., 983 F.2d 824, 833 (8thCir.1992)). Only later did Powell file a motion to intervene as a party defendant. This legal timidity is even more unusual as at basically the same time, Powell had not been bashful in resorting to the courts of this state in an attempt to vindicate her legal and factual claims in another matter. See Marks v. Clark, 2001 SD 122, 635 N.W.2d 278.